(2009) 163 Cal.App.4th 831
[Discrimination; ADA Compliance] Americans with Disabilities Act (ADA) and related federal regulations implementing the ADA do not apply to portions of private residential facilities that are not open to the general public.
Oren & Oren, Inc. and Charles D. Oren for Plaintiff and Appellant. Prindle, Decker & Amaro and Jack C. Nick for Defendants and Respondents.
OPINION
KANE, J.-
Plaintiff Joseph Coronado, a disabled man who is wheelchair-bound, decided to rent a particular apartment at Cobblestone Village, a multi-unit complex owned and operated by defendants Cobblestone Village Community Rentals, L.P. and Equity Residential Properties Management Corporation. fn. 1 A barrier to wheelchair access existed on the path outside the apartment. Specifically, the concrete sidewalk leading from plaintiff’s apartment to the parking area ended in a raised curb with no access ramp for wheelchairs. Plaintiff was subsequently injured when his wheelchair toppled over while his wife tried to maneuver it off of the raised curb. Plaintiff sued defendants for violation of the Unruh Civil Rights Act (Civ. Code, § 51) fn. 2 and the Disabled Persons Act (§ 54 et seq.). After plaintiff’s case was presented at [836] trial, the trial court ruled that the above causes of action would not go to the jury because the statutory provisions were inapplicable to private residential apartments. Plaintiff appeals from that nonsuit order. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Cobblestone Village is an apartment complex located in the City of Fresno along both sides of Fruit Avenue. It was constructed in 1982 to 1983 using exclusively private funds. No substantial structural modifications or additions that would require a building permit have occurred since the original construction. The complex is owned and/or managed by defendants.
The leasing office for Cobblestone Village is open to the general public and a wheelchair access ramp is provided at that location. fn. 3 The apartments and common areas around the apartments are reserved for use by tenants and guests of tenants only, although other persons might enter the complex since defendants’ employees do not patrol the grounds. Vehicles are able to enter the apartment complex by means of a private driveway that connects with Fruit Avenue and winds through the interior of the complex.
Plaintiff is a quadriplegic. He has some use of his arms and can push his manual wheelchair to some extent, but a certain balance must always be maintained because he lacks upper torso control. He is able to get up a curb ramp in his wheelchair, but with no ramp a raised curb is an access barrier.
Cobblestone Village has apartment units that are fully accessible to disabled persons; however, such units were already rented at the time plaintiff and his wife, Krystal Coronado, were looking for an apartment. Plaintiff and his wife were shown apartment number Coro117 (the apartment) by one of the defendants’ leasing agents. The apartment was not designed for disability access, but the interior was adequate for plaintiff’s needs. There is a concrete path or sidewalk leading from the front door of the apartment to a common use parking area. This path or sidewalk ends at a raised curb next to plaintiff’s assigned parking spot. When plaintiff observed the raised curb at the time he was first shown the apartment, he informed defendants’ leasing agent that a wheelchair ramp would be needed. The agent indicated he would have to check with management, but he did not think it would be a problem. [837]
At the time plaintiff and his wife moved into the apartment in October of 2002, fn. 4 a temporary wooden ramp had been placed in the parking lot at the location of the raised curb at the end of the path leading to the apartment. The wooden ramp was placed there at the instruction of defendants’ apartment manager. It was constructed out of plywood and two-by-fours by defendants’ maintenance employee, who also repaired or replaced it on at least one occasion.
Plaintiff asserted at trial that defendants made numerous promises to put in a concrete wheelchair ramp at the curb. Plaintiff, his wife and a paralegal testified that assurances were given by several of defendants’ employees that a concrete ramp would in fact be built at defendants’ expense. Plaintiff and his wife also testified that they were ready and willing at all times to pay the expense themselves of putting in the concrete ramp, and made this fact known to defendants.
Defendants’ leasing agents who dealt with plaintiff and his wife denied ever promising a permanent concrete ramp. Linda Kelley, the apartment manager, testified that she told plaintiff and his wife that they had the option of putting in a permanent ramp at their own expense. According to Ms. Kelley, plaintiff and/or his wife never came forward and said “‘Yes[, we] want to put a ramp in.'” Eventually the wooden ramp, which was put in as a temporary convenience only, had to be removed. Thus, defendants’ position was that plaintiff simply failed to take advantage of the option of putting in a concrete ramp at plaintiff’s expense.
In spring of 2003, for reasons that are not entirely clear, fn. 5 the wooden ramp was removed by defendant Equity Residential Properties Management Corporation. On June 18, 2003, plaintiff’s wife was helping plaintiff get down the curb to the parking area in his wheelchair. In the process, the wheelchair tipped over and plaintiff and his wife were injured.
Plaintiff’s complaint was filed on February 17, 2005. A first amended complaint set forth the following causes of action: (1) premises liability, (2) constructive eviction, (3) violation of the Unruh Civil Rights Act (§ 51), (4) violation of the Disabled Persons Act (§ 54.1), and (5) injunctive relief under the Disabled Persons Act (§ 55.1). [838]
On the eighth day of trial and shortly before it would be time to instruct the jury, the trial court ruled on its own motion that the Unruh Civil Rights Act and the Disabled Persons Act were inapplicable in the circumstances of this case and therefore the statutory causes of action would not go to the jury. fn. 6 As explained by the trial court from the bench, even though the defendants’ leasing office was a public accommodation (and hence subject to the disability access provisions), that fact did not convert the entirety of the apartment complex — including residential areas — into a public accommodation for purposes of the relevant statutes. The minute order stated as follows:
“The Court determines, given the law, the research the Court has conducted and the authorities that have been provided for the Court’s consideration … it does not appear, given the law, nor does there appear to be any facts that would cause an interpretation of the law that would cause or allow the plaintiff’s causes of action under any of the disabled persons statutes or discriminatory behavior statutes to go to the jury…. [A]nd so, I do not intend to give instructions that pertain to those statutes. [¶]…[¶] The Court advises the parties a determination has been made that the corporate entity or partnership of Cobblestone Village is a business, they maintain a business office on the premises and the office is located on the opposite side of the street from the plaintiff’s unit in a different section of the apartment complex. The business office is a public accommodation, but the private apartments are not public accommodations within the meaning of any of the statutes cited.”
After the conclusion of the trial, the jury returned a defense verdict on the premises liability and constructive eviction causes of action. Judgment in favor of defendants was entered on July 13, 2007. Plaintiff timely appealed from the trial court’s order of dismissal or nonsuit of the causes of action under the Unruh Civil Rights Act and the Disabled Persons Act.[839]
DISCUSSION
I. Standard of Review
Plaintiff appeals from the equivalent of a “nonsuit” order entered after the presentation of plaintiff’s evidence. (Code Civ. Proc., § 581c.) Thus, we review whether the trial court was correct in concluding that the evidence, when viewed most favorably toward plaintiff’s case, afforded no basis for a cause of action under either the Unruh Civil Rights Act or Disabled Persons Act as a matter of law. (See Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 639.) “We will not sustain the judgment ‘”unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.”‘ [Citations.]” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)
The substance of plaintiff’s appeal is that the trial court erred because defendants had a statutory duty to install a wheelchair ramp at the location of the raised curb so that plaintiff would have access on the only path of travel between the apartment and the parking area (and beyond). The interpretation and application of statutes present a question of law that we review de novo. (Sutco Construction Co. v. Modesto High School Dist. (1989) 208 Cal.App.3d 1220, 1228; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 317, p. 355.) Similarly, the issue of whether a statutory scheme such as the Unruh Civil Rights Act is applicable in a particular context is a question of law that is reviewed de novo. (Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 607, fn. 7 [question of whether private club was business enterprise under statute was one of law].)
[1] We consider questions of statutory interpretation in accordance with well-established principles of statutory construction. “[C]ourts must begin with the language of a given statute as the purest expression of legislative intent.” (Gunther v. Lin (2006) 144 Cal.App.4th 223, 233.) Our task is “to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.] Toward this end, we must accord a reasonable and commonsense interpretation consistent with the Legislature’s purpose. [Citation.]” (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 176-177.) “Moreover, ‘every statute should be construed with reference to the whole system of law of which it is a part, so that all may be harmonized and have effect.’ [Citation.] Statutes relating to the same subject matter are to be read together insofar as reasonably possible. [Citation.]” (Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1190.)[840]
II. Causes of Action Based on Structural Barrier Under Unruh Civil Rights Act and Disabled Persons Act
As noted, plaintiff contends that the existence of the particular structural barrier (i.e., lack of a curb ramp) on the pathway outside the apartment denied his right to full and equal access to a public accommodation, which was therefore actionable under the Unruh Civil Rights Act and the Disabled Persons Act. Defendants counter that the trial court properly granted nonsuit because the barrier did not constitute a violation of any structural access standard applicable to residential facilities. We now address these respective arguments by considering the statutes in question
A. Unruh Civil Rights Act
[2] Section 51, also known as the Unruh Civil Rights Act, provides in part: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability… are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (§ 51, subd. (b), italics added.) This section “shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike” to all persons. (§ 51, subd. (c).) [3] Section 52, subdivision (a), authorizes recovery of damages to persons denied the rights that are protected under section 51. However, a plaintiff seeking to establish a cause of action for damages under the Unruh Civil Rights Act “must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.” (Harris v. Capital Growth Investors XIV(1991) 52 Cal.3d 1142, 1175, italics added; see Hankins v. El Torito Restaurants, Inc.(1998) 63 Cal.App.4th 510, 518 [damages under § 52 require intentional violation of § 51];Gunther v. Lin,supra, 144 Cal.App.4th at pp. 247, 257 [same].) fn. 7
[4] The provisions of the Unruh Civil Rights Act, “in light of its broad application to ‘all business establishments,’ have been held to apply with full force to the business of renting housing accommodations.” (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 731.) Thus, the residential apartment complex in Marina Point correctly conceded that “like other business establishments that deal with the public, its freedom or authority to exclude ‘customers,’ i.e., prospective tenants, from the goods and services it offers, i.e., rental units, is limited by the provisions of the [841] Unruh Act.” (Ibid., fn. omitted; O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 794-796 [private condominium association was a “business establishment” covered by the Unruh Act].) It is clear from Marina Point and O’Conner that section 51 is fully applicable to defendants’ apartment complex business in the present case, i.e., Cobblestone Village. The question then is not whether section 51 applies to the business enterprise of renting apartments (it does), but whether a cause of action for violation of section 51 may be established in this case under plaintiff’s evidence presented at trial.
[5] We therefore consider whether section 51 may have been violated by the existence of the structural barrier (i.e., no curb ramp) — a theory that depends on a conclusion that defendants were required to make a structural modification to the property. Subdivision (d) of section 51 states: “Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure….” (Italics added.) Subdivision (e) of section 51 further declares that “A violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) [ADA] shall also constitute a violation of this section.” Thus, on the question of whether a particular structural modification (such as a wheelchair ramp) is required in a given context, section 51 by its own terms looks to other provisions of law.
It follows from the above discussion that a cause of action in which a plaintiff seeks damages for disability discrimination under section 51 based on a structural or architectural barrier requires a showing that the barrier existed due to an intentional violation of an applicable law relating to disability access standards. (See Gunther v. Lin,supra, 144 Cal.App.4th at p. 247 [§ 51 violation may be founded on structural and architectural barriers that are intentional violation of ADA].) Plaintiff contends that defendants were required to construct a wheelchair ramp in the present case under the following provisions of law: (1) Government Code section 4450 et seq. and Health and Safety Code section 19955 et seq., and (2) the ADA. We will shortly turn our attention to these statutory schemes to determine if plaintiff is correct. At this point, we emphasize that plaintiff’s cause of action under section 51 premised on the existence of a structural barrier depends on whether the lack of a wheelchair ramp at the subject curb constituted an intentional violation of one of these other provisions of law relating to disability access.[842]
B. Disabled Persons Act
In 1968, the Legislature enacted sections 54, 54.1 and 54.3 as one of two statutory schemes that were specifically designed to prevent discrimination against the physically disabled. (People ex rel.Deukmejian v. CHE, Inc. (1983) 150 Cal.App.3d 123, 131-134.) The other statutory scheme, which we address later, consisted of Government Code section 4450 et seq. and Health and Safety Code section 19955 et seq. (People ex. rel. Deukmejian v. CHE, Inc., supra, at pp. 131-134.)
Sections 54 through 55.2 are now commonly referred to as the Disabled Persons Act and are “intended to secure to disabled persons the ‘same right as the general public to the full and free use’ of facilities open to the public. [Citation.]” (Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 261.) As originally enacted, violation of sections 54 or 54.1 constituted a misdemeanor as stated in former section 54.3, and enforcement was by government prosecution. (Marsh v. Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d 881, 887 (Marsh).) In 1974, section 55 was added to give individuals aggrieved by violation of sections 54 or 54.1 a right to obtain injunctive relief; and in 1976, section 54.3 was amended to allow such individuals a right to maintain a civil cause of action for damages. (Donald v. Cafe Royale, Inc., supra, 218 Cal.App.3d at p. 179 [summarizing statutory history].) These additional enforcement methods were included by the Legislature to “guarantee compliance with equal access requirements” and to help remove “impediments to the physically handicappeds’ interaction in community life….” (Ibid.)
The Disabled Persons Act (§§ 54-55.2) differs from the Unruh Civil Rights Act (§§ 51 & 52) in at least two respects: (1) there is no intent element under the Disabled Persons Act (Donald v. Cafe Royale, Inc., supra, 218 Cal.App.3d at p. 177), but intentional discrimination is a required element for recovery of damages under the Unruh Civil Rights Act; and (2) each Act provides for a distinct measure of statutory penalties (cf. §§ 52 & 54.3;Gunther v. Lin, supra, 144 Cal.App.4th at p. 257). Due to these significant differences, a plaintiff must elect between seeking damages under sections 52 or 54.3. (§ 54.3, subd. (c); Gunther v. Lin, supra, 144 Cal.App.4th at p. 257.) fn. 8
Section 54, subdivision (a), declares that “Individuals with disabilities have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other [843] public places.” Section 54.1, subdivision (a)(1), states in similar fashion that “Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, … privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation, … telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law … and applicable alike to all persons.” Both sections 54 and 54.1 were amended in 1996 to add a provision declaring that “A violation of the right of an individual under the [ADA] also constitutes a violation of this section….” (§§ 54, subd. (c) & 54.1, subd. (c); see Stats. 1996, ch. 498, §§1 & 1.5.)
Subdivision (b)(1) of section 54.1 includes a specific provision relating to housing accommodations that declares as follows: “Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to all housing accommodations offered for rent, lease, or compensation in this state, subject to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.” “‘Housing accommodations’ means any real property, or portion thereof, that is used or occupied, or is intended, arranged, or designed to be used or occupied, as the home, residence, or sleeping place of one or more human beings, but shall not include any accommodations included within subdivision (a) or any single-family residence the occupants of which rent, lease, or furnish for compensation not more than one room therein.” (§ 54.1, subd. (b)(2).)
[6] In addition to declaring that the protections of the Disabled Persons Act apply to housing accommodations, subdivision (b) of section 54.1 affirmatively requires that those who rent, lease or otherwise provide such housing do the following: (1) make reasonable accommodations in rules, policies, practices, or services, when necessary to afford individuals with a disability equal opportunity to use and enjoy the premises (§ 54.1, subd. (b)(3)(B)), and (2) permit a disabled tenant to make reasonable modifications at his or her own expense to the rented premises when necessary to afford that tenant full use and enjoyment of the rented premises, which modifications may be conditioned on the tenant entering into a written agreement to restore the interior of the premises to the original condition (§ 54.1, subd. (b)(3)(A)). fn. 9 Finally, it is provided that “Nothing in this subdivision shall require any person renting, leasing or providing for compensation real property to modify his or her property in any way or provide a [844] higher degree of care for an individual with a disability than for an individual who is not disabled.” (§ 54.1, subd. (b)(4), italics added.) The latter section clarifies that subdivision (b) does not by itself mandate the owner or operator of the real property to make any structural modifications, which is consistent with the interpretation that the courts have generally given the Disabled Persons Act, as we discuss below.
[7] Historically, sections 54 and 54.1 have been construed to mean that “all physically handicapped are entitled to the same right as the able-bodied to full and free use of public facilities and places,” requiring operators of such public facilities and accommodations to “‘open [their] doors on an equal basis to all that can avail themselves of the facilities without violation of other valid laws and regulations.'” (People ex. rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d at p. 133, citing Marsh, supra, 64 Cal.App.3d at p. 892.) It has been held that these provisions do not, by themselves, require that a business owner structurally modify his or her facilities. (Marsh, supra, at pp. 886, 891 [§ 54.1 “does not require affirmative action by way of modifying existing structures”].) As the Marsh court concluded following an analysis of the legislative history, “the operator of a business of a type enumerated in Civil Code section 54.1 is not required by the force of that section alone to modify its facilities to allow for their use by handicapped persons.” (Marsh, supra, at p. 892; see Hankins v. El Torito Restaurants, Inc.,supra, 63 Cal.App.4th at p. 522 [acknowledging Marsh rule “that a structural impediment to access does not violate Civil Code section 54.1 unless the impediment also violates a structural access standard”].)
We know of no reason to depart from the analysis in Marsh on this issue. In fact, there are at least two sound reasons to follow it. First, it is clear that the Legislature adopted a distinct statutory scheme in 1968-1969 (i.e., Gov. Code § 4450 et seq. and Health & Saf. Code § 19955 et seq.) to address the separate matter of building access standards and structural modifications. (See, e.g.,People ex. rel. Deukmejian v. CHE,Inc.,supra, 150 Cal.App.3d at pp. 131-134 [structural access standards, applicable to new construction or modification of existing facilities, were enacted to “give meaning” to §§ 54 & 54.1];Donald v. Sacramento Valley Bank,supra, 209 Cal.App.3d at pp. 1190-1192 [same].) This fact strongly indicates sections 54 and 54.1 were not themselves intended to require business owners to modify the structure of their premises, as other statutes were adopted for that purpose. Second, the Legislature specifically responded to one aspect of the holding in Marsh (i.e., that there was no private cause of action for damages) by amending section 54.3 to authorize a private cause of action for specified damages (Stats. 1976, ch. 971, § 2; Stats. 1976, ch. 972, § 2.5; and Stats. 1977, ch. 881, § 3), but left fully intact Marsh’s fundamental interpretation of the statutory scheme that a structural barrier does not violate sections 54 or 54.1 unless it also violates a separate structural access standard. (See [845] Gunther v. Lin, supra, 144 Cal.App.4th at p. 236 [legislative acquiescence in prior judicial construction of statutory language creates inference that Legislature agreed with that construction].)
[8] We conclude that in order to state a cause of action for violation of sections 54 or 54.1 based on a structural or architectural barrier, the existence of the barrier must be in violation of a separate provision of law relating to structural access standards. This means that, as was true in our analysis of section 51, we must look to other provisions of law before we can determine whether a cause of action on this theory was sufficiently supported by the evidence.
We now proceed to consider those other laws.
C. Government Code Section 4450 et seq. and Health and Safety Code Section 19955 et seq.
As noted, Government Code section 4450 et seq. and Health and Safety Code section 19955 et seq. were enacted in 1968 and 1969 respectively as means of providing structural access standards in regard to public buildings and facilities. The scope and purpose of these provisions have been aptly summarized as follows: “To give meaning to the public accommodation law prohibiting discrimination against the handicapped, the Legislature enacted Government Code section 4450 et seq. providing for the establishment of standards for buildings constructed with public funds designed to insure accessibility by the handicapped. A year later, the Legislature expanded these requirements to facilities constructed with private funds ([Health & Saf. Code, ]§ 19955 et seq.) and, with certain limited exceptions, required conformance with the same standards set forth within Government Code section 4450 et seq. The underlying legislative intent of these statutory schemes is to require affirmative conduct so as to guarantee access to the physically handicapped upon construction of new facilities or with the repair and alteration of existing facilities. [Citation.]” (People ex. rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d at p. 133.) That is, disability access standards were first implemented with respect to public buildings or facilities constructed with public funds (Gov. Code, §§ 4450-4458), and were later expanded to include public buildings or facilities constructed with private funds (Health & Saf. Code, §§ 19955-19959;Donald v. Sacramento Valley Bank, supra, 209 Cal.App.3d at p. 1191).
Since Cobblestone Village was constructed with private funds, plaintiff’s contention is that Health and Safety Code section 19955 et seq. required the construction of a curb ramp at the location where the incident occurred. Defendants respond that the walkway outside plaintiff’s apartment is not a [846] public facility, and therefore Health and Safety Code section 19955 is inapplicable. As explained below, we conclude defendants are correct.
[9] Health and Safety Code section 19955, subdivision (a), explains that the purpose of Part 5.5 of the code (including sections 19955 to 19959.5) is “to insure that public accommodations or facilities constructed in this state with private funds adhere to the provisions of Chapter 7 (commencing with Section 4450) of Division 5 of Title 1 of the Government Code.” The same section defines the term “‘public accommodation or facilities'” as follows: “a building, structure, facility, complex, or improved area which is used by the general public and shall include auditoriums, hospitals, theaters, restaurants, hotels, motels, stadiums, and convention centers.” (Health & Saf. Code, § 19955, subd. (a), italics added.) Similarly, Health and Safety Code section 19956.5, which relates to public curbs and sidewalks constructed with private funds, states that it applies to “Any curb or sidewalk intended for public use….” (Italics added.)
In the present case, there was no evidence to suggest that the cement walkway outside plaintiff’s apartment was an area used by the general public or that it was intended for use by the general public. The relevant testimony on this issue indicated that although the general public was invited to the leasing office, only tenants and guests of tenants were supposed to be in residential areas and common areas around the residential areas. Additionally, there was no evidence to indicate that the private lane or driveway going through the interior of defendants’ complex, as a means of vehicular access, was intended for use by the general public. Thus, the curb located on the walkway outside plaintiff’s apartment was not a public facility or public sidewalk to which the provisions of Health and Safety Code sections 19955 and 19956.5 would apply.
This determination is in accord with a well-reasoned 1982 Attorney General Opinion concluding that a mobilehome park recreational building is not a public accommodation or facility within the meaning of the above statutes. (65 Ops.Cal.Atty.Gen. 72, 75 (Jan. 26, 1982).) As explained by that opinion:
“Undoubtedly that facility is open to a more general class than the residents of the park, for surely it is available to their families and invited guests. Use by the expanded group of persons in our view, however, does not reach the use ‘by the general public’ spoken of in [Health and Safety Code] section 19955. There are still meaningful restrictions on who may use the facilities, which considerably narrows their amenability to user from being generally available to the public — as is the case with an auditorium, hospital, theater, restaurant, hotel, motel, stadium or convention center — to being available to a select and definable few. Furthermore, unlike those facilities, the purpose for whose creation is based upon their being made continuously available to the [847] general public and whose economic viability cannot survive without their being so available, the recreation center at a mobilehome park is neither so created nor dependent. Rather, it is a secondary appendage to another unit, the park itself which, like it, neither contemplates nor needs accessibility of continuous use by the general public for its sustenance. Thus, we do not believe the fact that a recreational building in a mobilehome park might well be used by the residents’ families, friends, and invited guests makes it ‘a building … or facility used by the general public’ or a ‘public facility or accommodation’ within the meaning of [Health and Safety Code] section 19955.”
Of further interest in our present case, the same Attorney General Opinion rejected an argument that the presence of a commercial office within the mobilehome park converted all structures or areas in the park into a commercial establishment within the meaning of Health and Safety Code section 19955.5. “The main office of the park might be considered engaging in a commercial activity, but surely the individual mobilehomes cannot be so considered, nor do we believe the recreation building itself can be so considered…. Thus, while the office of the mobilehome park would be covered by [Health and Safety Code] section 19955.5, since commercial activity is performed within it, that does not extend to the park’s recreation building and it would not be covered by the section’s mandate.” (65 Ops.Cal.Atty.Gen. 72, 76 (Jan. 26, 1982).)
[10] In granting the nonsuit order in the present case, the trial court explained that even though defendants’ leasing office was a public accommodation (and hence subject to the structural access standards), that fact would not convert the entirety of the apartment complex — including residential areas — into a public accommodation for purposes of the relevant statutes. We concur with the trial court’s analysis on this point — which is also suggested in the above referenced Attorney General Opinion. In a multi-use complex such as this, where there is a commercial office open to the general public but also residential and common areas that are not open to the general public, it is appropriate to consider the particular area in question when attempting to determine the applicability of statutes that provide for structural access standards. We conclude that these statutory provisions did not require defendants to install a curb ramp at the location where plaintiff fell.
D. Americans With Disabilities Act
[11] Plaintiff claims that removal of the structural barrier in this case was required by the ADA. As noted previously, the California Legislature has declared that a violation of the ADA constitutes a violation of the Unruh Civil [848] Rights Act and the Disabled Persons Act. fn. 10 The ADA provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182(a).) The ADA defines discrimination in a place of public accommodation to include “a failure to remove architectural barriers … in existing facilities … where such removal is readily achievable ….” (42 U.S.C. § 12182(b)(2)(A)(iv).) The term “readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.” (42 U.S.C. § 12181(9).)
“Thus, under the ADA, the duty to remove such barriers from public accommodations now extends beyond initial construction and significant alterations of existing structures. ‘A public accommodation shall remove architectural barriers in existing facilities, … where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.’ [Citation.]” (Madden v.Del Taco, Inc. (2007) 150 Cal.App.4th 294, 302 (Madden).) In Madden, the Court of Appeal held that a restaurant was required to remove a structural barrier (i.e., a cement trash container blocking an accessible route of travel to an entrance) based on the requirement in the ADA to remove barriers where such removal is readily achievable. (Madden, supra, at pp. 302-303.) fn. 11 This was so even though the restaurant was otherwise in compliance with structural access standards and had not engaged in any triggering alterations. fn. 12 (Madden, supra, at p. 302)[849]
Plaintiff contends that Madden directly applies here because the installation of a curb ramp, as a means of removal of a structural barrier to access, was readily achievable in this case, especially when the evidence that plaintiff was willing to pay for the installation is considered. Defendants argue that Madden is inapplicable because it involved a place of public accommodation as defined under the ADA, while the instant case did not. We agree with defendants’ position.
Section 12181 of the ADA defines the term “public accommodation” in terms of “12 extensive categories, which the legislative history indicates ‘should be construed liberally’ to afford people with disabilities ‘equal access’ to the wide variety of establishments available to the nondisabled.” (PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 676-677, fns. omitted.) Section 12181(7) of the ADA states:
“The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce
“(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
“(B) a restaurant, bar, or other establishment serving food or drink;
“(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
“(D) an auditorium, convention center, lecture hall, or other place of public gathering;
“(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
“(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
“(G) a terminal, depot, or other station used for specified public transportation;
“(H) a museum, library, gallery, or other place of public display or collection;[850]
“(I) a park, zoo, amusement park, or other place of recreation;
“(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
“(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
“(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.”
[12] Plaintiff argues the category “inn, hotel, motel, or other place of lodging” (42 U.S.C. § 12181(7)(A)) should be interpreted to include a residential apartment complex. Even when liberally construed, the wording cannot reasonably stretch that far. The described category of “inn, hotel, motel, or other place of lodging” obviously entails places that provide only short-term or transient lodging, not places of residence. This is confirmed by congressional legislative history that explicitly states only nonresidential facilities were intended to be covered by the ADA. (H.R.Rep. 101-485 (II), 2d Sess., p. 303 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, p. 383.) Finally, federal courts addressing the issue have consistently held that the ADA does not apply to residential facilities such as apartments or condominiums. (Regents of Mercers. College v. Rep. Franklin Ins. (3d Cir. 2006) 458 F.3d 159, 165-166, fn. 8 [“residential facilities such as apartments and condominiums are not transient lodging and, therefore, not subject to ADA compliance”]; Lancaster v. Phillips Investments, LLC (M.D.Ala. 2007) 482 F.Supp.2d 1362, 1367;Indep. Housing Services v. Fillmore Ctr. (N.D.Cal. 1993) 840 F.Supp. 1328, 1344, fn. 14; Mabson v. Assn. of Apt. Owners (D.Hawaii August 13, 2007, Civ. No. 06-00235DAE-LEK) 2007 U.S. Dist. LEXIS 59260 at *30;Phibbs v. Am. Prop. Mgmt. (D.Utah March 19, 2008, No. 2:02CV00260DB) 2008 U.S. Dist. LEXIS 21879 at **6-8.) We concur with the reasoning and conclusions expressed in these cases.
We hold that the portions of Cobblestone Village that are a residential apartment complex are not a public accommodation under the ADA, and therefore are not subject to compliance with the ADA or federal regulations implementing the ADA. Consequently, defendants were not required by the ADA to install a curb ramp at the location outside plaintiff’s apartment.
[13] As was the case with the California discrimination statutes, the mere fact that there was a business office in the apartment complex does not change our conclusion. The legislative history of the ADA indicates it was not intended to apply to portions of a multi-use facility that are residential in character. The 1990 House Report relating to the ADA stated: “Only nonresidential facilities are covered by this title. For example, in a large hotel that [851] has a residential apartment wing, the residential wing would be covered under the Fair Housing Act … rather than by this title. The nonresidential accommodations in the rest of the hotel would be covered by this title.” (H.R.Rep. 101-485 (II),supra, at p. 303, reprinted in 1990 U.S. Code Cong. & Admin. News, p. 383.) Accordingly, the ADA should be reasonably construed and applied in accordance with this intent. This means that where there is a multi-use facility in which there is a commercial office open to the general public but also residential and common areas that are not open to the general public, it is appropriate to consider the particular area in question when attempting to determine the applicability of ADA structural access standards or other ADA requirements. (See also 28 C.F.R § 36, Appen. B [indicating that in a mixed use facility the residential portion thereof would not be covered by ADA]; Indep. Housing Services v. Fillmore Ctr., supra, 840 F.Supp. at p. 1344 [ADA held inapplicable to residential portions of the larger facility].)
E. Summary of Conclusion Regarding Structural Barrier Causes of Action
[14] As explained herein above, a plaintiff seeking to establish a cause of action under the Unruh Civil Rights Act or the Disabled Persons Act based solely on the existence of a structural barrier must be able to show that the failure to remove the barrier constituted a violation of a structural access standard set forth in other provisions of law. In the instant case, none of the statutes that were referred to by plaintiff as the source of such structural access standards was applicable to the residential and common areas of the apartment complex. We have also observed that this result is not affected in this case by the fact that the apartment complex had a leasing office within the facility. Accordingly, no structural barrier cause of action was presented under the allegations and facts of this case as a matter of law and the trial court correctly kept such causes of action from the jury.
In reaching this conclusion regarding the scope of the various statutory schemes, we emphasize that our role is to construe and apply the legislation as it is. This court is not insensitive to the hardships suffered by individuals who have disabilities, but these are peculiarly legislative matters. As aptly stated by the court in Marsh, supra, 64 Cal.App.3d at page 888: “The varied and distinctive nature of the numerous handicaps from which so many people suffer suggests … that the problem is one which the legislative branch of government is uniquely equipped to solve. It is in the legislative halls where the numerous factors involved can be weighed and where the needs can be properly balanced against the economic burdens which of necessity will have to be borne by the private sector of the economy in providing a proper and equitable solution to the problem.”[ 852]
DISPOSITION
The judgment is affirmed. Costs are awarded to defendants.
Cornell, Acting P.J., and Hill, J., concurred.
FN 1. For simplicity, we refer to these entities jointly as defendants unless it seems helpful to the discussion to refer to one defendant separately.
FN 2. Unless otherwise indicated, all further statutory references are to the Civil Code.
FN 3. The leasing office is located on the other side of Fruit Avenue from plaintiff’s apartment. In addition to the leasing office, the swimming pool area and at least two of the apartment units had full disability access.
FN 4. Plaintiff and his wife began renting the apartment in late October of 2002 and moved out in August of 2003.
FN 5. There was some testimony to the effect that the ramp was removed because it did not appear to be safe or it was in poor condition. Other testimony reflects it may have been mistakenly thrown out because it appeared to be a skateboard ramp or a piece of wood that did not belong there.
FN 6. Plaintiff points out that the trial court failed to comply with standard procedures governing nonsuit motions (see Code Civ. Proc., § 581c). Although the trial court’s sua sponte order was unusual, no basis for reversal is shown. First, it is clear the trial court was acting to fulfill its judicial duty to ensure the jury was properly instructed on the law applicable to the case. Once the trial court concluded the disability access statutes were inapplicable in the context of this case, and hence claims based thereon could not as a matter of law go to the jury, it promptly informed the parties of its decision. Second, plaintiff made no objection below on grounds of procedural error or unfairness, and it is apparent the parties understood this was a legal issue that had to be resolved in the case. Third, since the instant appeal requires us to resolve the same legal issues as the trial court faced, and we agree that no cause of action existed under the statutes in question, it would be an idle act for us to reverse the case on procedural grounds simply to have the trial court enter a dismissal. (See § 3532.)
FN 7. In contrast, recovery under the Disabled Persons Act (§§ 54-55.2) does not require an intentional violation. (Donald v. Cafe Royale, Inc., supra, 218 Cal.App.3d at p. 177;Gunther v. Lin, supra, 144 Cal.App.4th at pp. 240-241.)
FN 8. Another difference is that the Unruh Civil Rights Act has an express provision authorizing punitive damages (§ 52, subd. (b)(1)), but the Disabled Persons Act does not.
FN 9. Plaintiff does not argue that this section is applicable to his claim that a curb ramp should have been installed. This is correct, since the curb is situated in a common area that is not part of plaintiff’s apartment.
FN 10. Of course, in the case of the Unruh Civil Rights Act, the violation must be an intentional discrimination or an intentional violation of a structural access standard, as previously discussed.
FN 11. Madden suggests that California building standards would now, like the ADA, require removal of architectural barriers in existing public accommodations that come within the scope of Government Code section 4450 and Health and Safety Code 19955 et seq. (Madden, supra, 150 Cal.App.4th at p. 302, fn. 3.)
FN 12. When a public accommodation that was constructed prior to the effective date of the ADA is altered or a part of it is altered, the ADA requires that the alterations be made such that “the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” (42 U.S.C. § 12183(a).) Similar provisions for applicability of access standards to post-construction alteration are set forth in Health and Safety Code section 19959 and Government Code section 4456 regarding buildings constructed prior to the effective dates thereof. These standards are applied to “new facilities or with the repair and alteration of existing facilities.” (People ex rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d at p. 133.) This is presumably what the Madden court meant by a “triggering alteration.” The concept of a triggering alteration is not at issue here because, as explained herein, the referenced statutes do not apply to the residential apartment complex or common areas thereof, and in any event there is no evidence of any significant alteration to Cobblestone Village.
An association’s governing documents (i.e., architectural standards) may not prohibit, or include conditions that have the effect of prohibiting, “the use of low water-using plants as a group or as a replacement of existing turf.” (Civ. Code § 4735(a)(1).) Additionally, the governing documents may not have the effect of prohibiting or restricting compliance with either:
Civil Code Section 4735 also restricts an association’s ability to fine homeowners for failing to water their landscaping during government-declared drought periods. (See “Watering During Droughts.”)
Artificial Turf (Artificial Grass)
Homeowners within associations have rights to install artificial turf (artificial grass) on their properties regardless of any provisions in an association’s governing documents to the contrary. (See “Artificial Turf (Artificial Grass).”)
(a)
(1) To the extent funds are appropriated, not later than January 1, 2009, by regulation, the department shall update the model water efficient landscape ordinance adopted pursuant to Chapter 1145 of the Statutes of 1990, after holding one or more public hearings. The updated model ordinance shall be based on the recommendations set forth in the report prepared pursuant to Chapter 682 of the Statutes of 2004 and shall meet the requirements of Section 65596.
(2) Before the adoption of the updated model ordinance pursuant to paragraph (1), the department shall prepare and submit to the Legislature a report relating to both of the following:
(A) The extent to which local agencies have complied with the model water efficient landscape ordinance adopted pursuant to Chapter 1145 of the Statutes of 1990.
(B) The department’s recommendations regarding the landscape water budget component of the updated model ordinance described in subdivision (b) of Section 65596.
(b) Not later than January 31, 2009, the department shall distribute the updated model ordinance adopted pursuant to subdivision (a) to all local agencies and other interested parties.
(c) On or before January 1, 2010, a local agency shall adopt one of the following:
(1) A water efficient landscape ordinance that is, based on evidence in the record, at least as effective in conserving water as the updated model ordinance adopted by the department pursuant to subdivision (a).
(2) The updated model ordinance described in paragraph (1).
(d) If the local agency has not adopted, on or before January 1, 2010, a water efficient landscape ordinance pursuant to subdivision (c), the updated model ordinance adopted by the department pursuant to subdivision (a) shall apply within the jurisdiction of the local agency as of that date, shall be enforced by the local agency, and shall have the same force and effect as if adopted by the local agency.
(e) Nothing in this article shall be construed to require the local agency’s water efficient landscape ordinance to duplicate, or to conflict with, a water efficiency program or measure implemented by a public water system, as defined in Section 116275 of the Health and Safety Code, within the jurisdictional boundaries of the local agency.
Civil Code Section 714 is a component of the “California Solar Rights Act.” It limits the degree to which an association’s governing documents may prohibit or restrict the installation of solar energy systems in a member’s separate interest:
“Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property, and any provision of a governing document, as defined in Section 4150 or 6552, that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable.” (Civ. Code § 714(a).)
A “solar energy system” means either of the following:
- Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating, space cooling, electric generation, or water heating; or
- Any structural design feature of a building, whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation, space heating or cooling, or for water heating. (Civ. Code §§ 714(d)(2), 801.5(a)(1)-(2).)
“Reasonable Restrictions” Permitted
Civil Code Section 714(b) permits “reasonable restrictions” on the installation or use of solar energy systems. Reasonable restrictions on solar energy systems are “those restrictions that do not significantly increase the costs of the system or significantly decreases its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits.” (Civ. Code § 714(b).)
The term “significantly” has different meanings depending on the type of solar energy system being used (i.e., whether it is solar panels or a solar water heating system):
Photovoltaic Systems (Solar Panels): $1000 Cost Increase or 10% Efficiency Reduction
For photovoltaic systems (solar panels) that comply with state and federal law, “significantly” means:
- “an amount not to exceed one thousand dollars ($1,000) over the system cost as originally specified and proposed,” or
- “a decrease in the system efficiency of an amount not exceeding 10 percent as originally specified and proposed.” (Civ. Code § 714(d)(1)(B).)
Solar Water Heating Systems: 10%/$1,000 Cost Increase or 10% Efficiency Reduction
For “solar domestic water heating systems or solar swimming pool heating systems” that comply with state and federal law, “significantly” means:
- “an amount exceeding 10 percent of the cost of the system, but in no case more than one thousand dollars ($1,000),” or
- “decreasing the efficiency of the solar energy system by an amount exceeding 10 percent, as originally specified and proposed.” (Civ. Code § 714(d)(1)(A).)
Application & Timeline for Approval: 45 Day Maximum
Where association approval for the installation or use of a solar energy system is required, the application must be processed and approved in a manner consistent with that utilized for approving an application for modifications to the owner’s property. (Civ. Code § 714(e)(1); See also “Architectural Application & Approval Process.”) Approval or denial must be in writing. If no approval or denial is received within forty-five (45) days from the date of receipt of the application, the application will be deemed approved unless the delay is due to a reasonable request for the owner to provide additional information. (Civ. Code § 714(e)(2)(A)-(B).)
Additionally, Civil Code Section 714.1(b) allows an association to impose reasonable provisions that require the owner to obtain association approval for the installation of a solar energy system in a separate interest owned by another.
System & Owner Requirements
The solar energy system proposed by an owner must:
Additionally, Civil Code Section 714.1 allows an association to impose reasonable provisions which:
- Restrict the installation of solar energy systems installed in common areas to those systems approved by the association;
- Require the owner of a separate interest to obtain the approval of the association for the installation of a solar energy system in a separate interest owned by another;
- Provide for the maintenance, repair, or replacement of roofs or other building components; and/or
- Require installers of solar energy systems to indemnify or reimburse the association or its members for loss or damage caused by the installation, maintenance, or use of the solar energy system. (Civ. Code § 714.1(a)-(d).)
Solar Energy Systems Installed in Common Area
Civil Code Section 4746 grants owners rights to install solar energy systems on common area roofs, garages and carports, subject to certain limitations discussed below.
Association Requirements
When reviewing a request to install a solar energy system on a multifamily common area roof shared by more than one homeowner, the association must require (Civ. Code § 4746(a)):
- that the applicant/owner notify each owner of a unit in the building sharing the roof of the application, and
- the owner and each successive owner to maintain a homeowner liability coverage policy at all times and provide the association with the corresponding certificate of insurance within 14 days of approval of the application and annually thereafter.
Reasonable Restrictions Which May be Imposed
When reviewing a request to install a solar energy system on a common area roof as described above, the association may also impose reasonable provisions which (Civ. Code § 4746(b)):
- require the applicant to submit a solar site survey showing the placement of the solar energy system, which also includes a determination of the equitable allocation of the usable solar roof area among all owners sharing the same roof, garage or carport;
- require the owner and each successive owner of the solar energy system to be responsible for costs of (i) damage to the common area, exclusive use common area or separate interests resulting from the installation, maintenance repair, removal or replacement of the system, (ii) costs of maintenance, repair and replacement of the system until it has been removed and for the restoration of the area after removal; and
- require the owner to disclose to prospective buyers the existence of the owner’s system and his corresponding responsibilities described above.
Granting Exclusive Use
Permitting an owner to install a Solar Energy System on a common area roof, garage or carport in accordance with the above does not constitute a grant of exclusive use requiring membership approval. (Civ. Code § 4600(b)(3)(J); See also “Granting Exclusive Use of Common Area.”)
Aesthetic Considerations
In reviewing an application for a proposed solar energy system, an association is permitted to consider the aesthetic impacts of the proposed system, provided that such consideration does not violate Civil Code Section 714’s requirements with regard to “significant” increases in the system’s costs or decreases in the system’s efficiency or specified performance:
“Nothing in the language of section 714 prohibits the consideration of aesthetic impacts. To the contrary, the provision in section 714 that “the application for approval shall be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property” indicates that the Legislature specifically anticipated that an evaluation of a proposed solar energy system–just as any other proposed improvement–would involve the consideration of aesthetics.” (Tesoro del Valle Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 633.)
No Requirement for Association to Propose Alternative System
If an association justifiably denies an application for a proposed solar energy system, the association is not required to then propose a comparable alternative system that would satisfy the association’s approval requirements:
“We are likewise unpersuaded by [the homeowners’] argument that [the association] had the burden to propose a comparable alternative system at the time it denied [the homeowners’] application. Again, nothing in the language of section 714 imposes such a burden on a homeowners association. The statute requires only that the denial of a solar energy system application be in writing and in a timely manner. (§ 714, subd. (e)(2).) Nor do the CC&R’s or Design Guidelines require that the [association] redesign a solar energy system that fails to garner approval. Instead, the burden is on the homeowner to submit an application that is complete and sufficient to generate approval…once the [association] informed [the homeowners] of the bases of its denial, it was [the homeowners’] burden to reapply for approval of a solar energy system utilizing an application that satisfied the procedural requirements in the CC&R’s and that addressed the [association’s] concerns about location, safety and aesthetics.” (Tesoro del Valle Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 633.)
Violation & Enforcement of Section 714
An association that “willfully violates” the requirements of Civil Code Section 714 is liable to the applicant or other party for actual damages and a civil penalty in an amount not to exceed one thousand dollars ($1,000.00). (Civ. Code § 714(f).) In an action to enforce compliance with Civil Code Section 714, the “prevailing party shall be awarded reasonable attorney’s fees.” (Civ. Code § 714(g).)
(2011) 200 Cal.App.4th 619
[Architectural Control; Solar Energy] An association may consider aesthetic impacts in connection with reviewing and approving an owner’s application for a proposed solar energy system.
Law Offices of Michael L. McQueen and Michael L. McQueen for Defendants and Appellants. Greenberg Glusker Fields Claman & Machtinger and Ricardo P. Cestero for Plaintiff and Respondent.
OPINION
DOI TODD, Acting P.J.-
Defendants and appellants Martin and Carolyn Griffin appeal from a judgment following a jury verdict in favor of plaintiff [623] and respondent Tesoro del Valle Master Homeowners Association (Tesoro) on its claims that appellants installed a solar energy system at their residence in contravention of conditions, covenants and restrictions governing their property. Unmindful of applicable standards of review, appellants raise a host of issues in an effort to undermine the jury verdict. We affirm. The jury properly determined the disputed issues and substantial evidence supported the determinations; Tesoro properly evaluated appellants’ application for their system, brought suit and received a jury trial; and the trial court properly exercised its discretion in the admission and exclusion of expert testimony.
FACTUAL AND PROCEDURAL BACKGROUND
Tesoro’s Governing Documents.
Tesoro is a nonprofit mutual benefit corporation that manages, administers, maintains, preserves and operates the residences and common areas in the Tesoro community. On May 29, 2003, the developer of the Tesoro community recorded with the Los Angeles County Recorder’s Office a Master Declaration of Establishment of Covenants, Conditions, and Restrictions for Tesoro del Valle (CC&R’s). The purpose of the CC&R’s is to enhance and protect the value, desirability and attractiveness of the Tesoro community, as well as to give the Tesoro Board of Directors (Tesoro Board) the authority to maintain community standards.
Article 7 of the CC&R’s addresses the duties and responsibilities of Tesoro’s volunteer Architectural Control Committee (ACC), providing that homeowners must obtain the ACC’s approval before making any improvements to their property. Section 7.2 of the CC&R’s outlines the application process, providing the application requirements and stating that the ACC may grant approval only if the applicant has complied with those requirements and the ACC, in its discretion, concludes that the proposed improvement conforms to the CC&R’s and is harmonious with the existing development.
Section 8.1.18 of the CC&R’s reiterates that “[t]here shall be no construction, alteration, or removal of any Improvement in the Project (other than repairs or rebuilding done by the Association pursuant hereto) without the approval of the Architectural Control Committee.” Further, section 8.1.20 of the CC&R’s states: “Within slope areas, no structure, planting, fencing, . . . shall be placed or permitted to remain or other activities undertaken which may damage or interfere with established slope ratios, create erosion or sliding problems, or which may change the direction of flow of drainage channels or obstruct or retard the flow of water through drainage channels.” That provision also imposes on the homeowner the duty to maintain the landscaping installed on the slope by Tesoro. [624]
In December 2003, Tesoro approved Design Guidelines to “help assure continuity in design, which will help preserve and improve the appearance of the community.” Section III, paragraph G, specifically directed to the architectural standards for solar energy systems, provides: “As provided for in Section 714 of the California Civil Code, reasonable restrictions on the installation of solar energy systems that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or which allow for an alternative system of comparable costs, efficiency, and energy conservation benefits may be imposed by the Committee [ACC]. [¶] Whenever approval is required for the installation or use of a solar energy system, the application for approval shall be processed and approved by the Committee in the same manner as an application for approval of a modification to the property, and shall not be willfully avoided or delayed.”
Appellants’ Solar Energy System Installation.
In 2005, appellants purchased their home at 29313 Hacienda Ranch Court (property) in the Tesoro development. fn. 1 Their corner property was approximately 15,000 square feet and included a slope outside the perimeter wall. They were provided with a copy of the CC&R’s at that time and understood they would be bound by them. They also received Tesoro’s Design Guidelines and agreed to be bound by those as well. Appellants were aware that they were required to maintain their property, including the slope, and to submit a written application to obtain approval from the ACC before making any improvements to their property. After submitting the required applications, they made several improvements to their property, such as the installation of a pool, casita and landscaping including a fountain and hardscape.
In 2007, appellants met with Joe Hawley, then with Advanced Solar Electric, who gave them a proposal for the installation of a solar energy system for their property. They told Hawley they were interested in the system being installed on the slope adjacent to their residence. Appellants submitted an application to install a solar energy system on October 2, 2007. fn. 2
Euclid Management Company was responsible for Tesoro’s day-to-day management. When Martin walked the application into the Euclid Management office, association manager Patty Prime told him it was not likely to be approved. She informed him that the application was incomplete in several areas and that she was unaware of any other solar energy systems being [625] installed outside a perimeter wall. According to the CC&R’s, the ACC had 45 days from the submission of appellants’ application to review and rule on it.
The CC&R’s and Design Guidelines specify the application requirements, which include the submission of a plot plan drawn to scale, a detailed description of the proposed materials, a landscape plan and a drainage plan. Appellants’ application met none of the requirements. It contained only a handwritten drawing with a rectangle signifying the approximate location of the proposed solar panels. It did not contain information concerning the panels’ dimensions, number or color; the setback; the proposed alterations to the landscaping; or the amount of electricity proposed to be generated.
Because of Prime’s negative comment, while their application was pending appellants sought a proposal from Hawley for the installation of solar panels on the roof of their residence. They received a proposal on October 10, 2007, which provided for the installation of 36 solar panels on their roof and 22 panels on the slope, but they did not amend their pending application or submit a revised application to reflect the changes. Instead, on November 8, 2007, they signed a $97,000 contract with Advanced Solar Electric for the installation of the new proposed solar energy system.
Also on November 8, 2007–before the expiration of the 45-day time limit–the ACC issued a letter denying appellants’ application. fn. 3 The denial letter was misaddressed, however, and appellants did not receive it until November 17, 2007–46 days after October 2, 2007. Summarizing the ACC’s position, Tim Collins handwrote four comments on appellants’ application noting that the roof of the casita adjacent to appellants’ residence should be considered as a location for the panels; that the project’s dimensions and minimum setbacks needed to be provided on the site plan; that appellants needed to indicate how the slope beneath the solar panels would be maintained; and that they needed to submit photographs of the existing landscape and superimpose the proposed panel elevation. The ACC was concerned about the proposed slope-mounted system because it was at the entry to the neighborhood, adjacent homes had a direct line of sight, the CC&R’s prohibited slope alteration and any alteration or landscape removal could impact drainage. The ACC expected that appellants would address the expressed concerns and submit a revised application.
After receiving the denial letter, Martin attended and spoke at a meeting of the Tesoro Board, informing the board members that he deemed the untimely denial of his project an approval, he had engaged a solar contractor and he [626] intended to proceed with his project starting in January 2008. Hawley also tried to respond to the ACC’s concerns. The ACC, however, saw no indication that appellants had investigated installation of the solar panels on the casita roof or that they had made efforts to comply with the ACC’s other requests. The Tesoro Board also directed Prime to prepare a timeline of events concerning appellants’ application, and after review concluded that all applicable time limits had been satisfied.
On December 18, 2007, appellants received a letter from Tesoro’s attorney, Jeffrey Beaumont, instructing them to stop further efforts to install a solar energy system on their property. Beaumont wrote to appellants again during the first week of January 2008, instructing them to stop construction.
Nonetheless, appellants proceeded with the installation of a solar energy system in January 2008. The system involved installing solar panels on the roof, and, in preparation for additional panels to be installed on the slope, removing landscaping and pouring a concrete foundation for pylons. Ultimately, by mid-January 2008, appellants agreed to stop construction temporarily pending Tesoro’s request for additional information. Following a January 23, 2008 meeting between appellants, Hawley, and Tesoro and Euclid Management representatives, appellants agreed to submit a revised application and Tesoro agreed to review and rule on the application within one week. The supplemental application added the installation of solar panels on the roof.
On January 29, 2008, the ACC denied the supplemental application in part, specifically disapproving the installation of solar panels on the slope and directing appellants to return the slope to its original condition. The ACC remained concerned about the same issues that led to the denial of the initial application, including that appellants had not considered alternative locations. After receiving this letter, appellants directed their contractor to complete the installation of solar panels on the slope. The system was fully installed by the end of March 2008.
Pleadings, Trial and Judgment.
The Tesoro Board met in an executive session in mid-February and authorized the filing of a lawsuit against appellants. It understood that it had the authority to initiate a lawsuit to enforce the CC&R’s without a vote of the entire Tesoro membership. As part of its decision, the Tesoro Board considered that several homeowners had complained about the solar panels on the slope; they had submitted a signed petition and communicated their concerns to Euclid Management.
During a full meeting of the Tesoro homeowners on March 25, 2008, an ACC representative reported that a lawsuit had been filed that day against [627] appellants because they had not followed architectural procedures before installing a solar energy system on their slope. Tesoro’s complaint alleged causes of action for breach of contract and negligence and sought declaratory and injunctive relief. The trial court denied appellants’ special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16. Tesoro thereafter filed the operative first amended complaint, which alleged the same causes of action and generally alleged that appellants’ solar energy system construction and installation failed to comply with several provisions of the CC&R’s.
Appellants answered and cross-complained against Tesoro, alleging claims for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of the California Solar Rights Act (Civ. Code, § 714) fn. 4 and declaratory and injunctive relief. Generally, they alleged that Tesoro failed to comply with both section 714 and its own CC&R’s in denying their solar energy system application.
Tesoro moved for summary judgment on its complaint and the cross-complaint, and appellants moved for summary judgment on the complaint only. The trial court denied both motions, ruling that triable issues of fact existed as to whether Tesoro complied or substantially complied with its CC&R’s and applicable law; whether Tesoro filed the action in accordance with the CC&R’s; whether Tesoro’s asserted noncompliance excused appellants’ proceeding with the installation of their solar energy system despite having notice of Tesoro’s denial; and whether Tesoro’s denial complied with section 714. Summarizing, the trial court ruled that the claims in the complaint and cross-complaint turned on whether the parties met their obligations under the CC&R’s and governing law.
In June 2009, Tesoro designated four expert witnesses to testify at trial. It designated solar energy forensic consultant Rod Bergen to testify regarding Tesoro’s compliance with section 714 in dealing with appellants’ solar energy system; the engineering, design and installation of solar energy systems generally; appellants’ solar energy system as installed; and alternatives to that system. Appellants did not designate any expert witnesses. In September 2009, the trial court granted Tesoro’s motion to strike appellants’ untimely expert designation offered three weeks late. The parties later stipulated that appellants would be permitted to call experts to rebut any of the facts relied on by Tesoro’s experts; appellants experts were precluded, however, from offering their own opinions.
In October 2009, the trial court granted Tesoro’s request for a jury trial. Appellants had objected to trial by jury, arguing that although Tesoro had [628] timely posted jury fees in accordance with a local rule requiring posting 25 days before the actual trial date, it had not complied with Code of Civil Procedure section 631 requiring that jury fees be posted 25 days before the “initial” trial date. The trial court allowed a jury trial, determining there was some ambiguity between the two provisions and that appellants had failed to demonstrate any prejudice as a result of allowing trial by jury.
Before trial began, the trial court also ruled on several motions in limine, denying appellants’ motion to preclude Tesoro from offering expert testimony, appellants’ motion to limit the testimony concerning the meaning of the CC&R’s, appellants’ motion to preclude evidence that Tesoro did not timely provide its notice of denial and appellants’ motion to preclude evidence that the notice of denial was incomplete.
As part of the jury instructions, the trial court informed the jury about the nature of the dispute and the parties’ contentions, stating that Tesoro claimed it was entitled to declaratory and injunctive relief because appellants had breached the CC&R’s by installing their solar energy system without written approval. It further stated that appellants claimed Tesoro breached section 714 and the CC&R’s by improperly reviewing and denying their solar energy system application, thereby entitling them to declaratory and injunctive relief.
Following a 10-day trial, on November 2, 2009, the jury returned a special verdict. It found that Tesoro did nothing prohibited by the CC&R’s or governing law, nor did it fail to do anything required by the CC&R’s and governing law with respect to its consideration of appellants’ solar energy system. It further found that Tesoro did not breach the implied covenant of good faith and fair dealing, did not violate section 714, responded to appellants’ application within the time limits set forth in the CC&R’s, responded to appellants’ application in the same manner as other applications for a change or modification to property and was entitled to the relief requested. With respect to appellants, the jury found that they either did something prohibited or failed to do something required by the CC&R’s and governing law in connection with their solar energy system. It found they were not excused from complying with the CC&R’s and governing law. The jury determined that appellants were not entitled to any relief and were required to remove the 22 solar panels from their hillside slope.
In December 2009, the trial court entered a judgment in favor of Tesoro that incorporated the special verdict findings. As part of the judgment, appellants were ordered to remove the 22 solar panels installed on the slope and to return the slope landscaping to its original condition within 60 days of entry of judgment. The trial court further ordered that appellants take nothing on their cross-complaint and awarded Tesoro its attorney fees and costs. [629]
Appellants thereafter filed motions for judgment notwithstanding the verdict and for a new trial. Following a February 10, 2010 hearing, the trial court denied both motions. This appeal followed.
DISCUSSION
Appellants contend there are multiple reasons why the judgment should be reversed. We loosely classify their arguments into three categories: Legal, procedural and evidentiary. Addressing each category in turn, we find no basis for reversal.
I. Appellants’ Legal Claims.
Appellants raise several issues relating to the interpretation and application of section 714, contending that any issue relating to that provision should not have gone to the jury, the CC&R’s as a matter of law failed to comply with that provision and Tesoro did not satisfy its burden under the statute. Keeping in mind that we review these questions from a jury verdict, we find no merit to appellants’ contentions.
A. Appellants Properly Submitted the Question of Compliance with Civil Code Section 714 to the Jury.
[1] Section 714 prohibits homeowners associations from imposing covenants, conditions or restrictions that effectively prohibit the installation of a solar energy system. (§ 714, subd. (a).) The statute further provides: “This section does not apply to provisions that impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits.” (§ 714, subd. (b).) Section 714 defines “significantly” as “an amount exceeding 20 percent of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20 percent, as originally specified and proposed” for a solar water or swimming pool heating system, and as “an amount not to exceed two thousand dollars ($2,000) over the system cost as originally specified and proposed, or a decrease in system efficiency of an amount exceeding 20 percent as originally specified and proposed” for a photovoltaic system. (§ 714, subds. (d)(1)(A) & (B).)
[2] Appellants now contend that the issue of Tesoro’s compliance with section 714 was a question of law that should not have been submitted to the [630] jury. They ignore the well settled rule “‘that the theory upon which a case is tried must be adhered to on appeal. A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.’ [Citations.]” (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1351, fn. 12; see also Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316 [“It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory”].)
Consistently throughout the proceedings below, appellants maintained that the question of Tesoro’s compliance with section 714 was a question of fact. In opposing Tesoro’s motion for summary judgment, they argued that whether Tesoro acted reasonably under the statute was a question of fact. Before trial began, they did not ask the trial court to determine the issue of compliance as a matter of law. During their opening statement, they told the jury that whether they had the right to install their solar panels involved a “factual determination” that it would have to make. They questioned witnesses about the application of section 714. During closing argument, they reiterated that it was the jury’s obligation to apply California law to the situation presented. They stipulated that the jury receive instructions on section 714; the jury received those instructions and determined by special verdict that Tesoro did nothing to violate the statute. In their post-trial motions, they argued that substantial evidence did not support the jury’s verdict that Tesoro complied with section 714–not that the jury was prohibited from deciding the question.
Appellants are bound by their decision to submit to the jury the question of Tesoro’s compliance with section 714. As aptly stated by the court in Shumate v. Johnson Publishing Co.(1956) 139 Cal.App.2d 121, 130: “A party cannot successfully take advantage of asserted error committed by the court at his request. [Citation.] The request that the jury be instructed as requested by defendants necessarily constituted consent to submission of the issue as a question of fact to be resolved by the jury. [Citation.] A party cannot request that an issue be submitted to a jury as a question of fact and on review escape the consequences.”
[3] Moreover, appellants’ position below was correct. Section 714, subdivision (b) permits homeowners association to impose “reasonable restrictions” on solar energy systems that do not significantly increase the cost of the system or decrease its efficiency. The determination of whether Tesoro’s CC&R’s and Design Guidelines imposed “reasonable” restrictions was necessarily a question of fact for the jury. (See Ayres v. City Council of [631] Los Angeles(1949) 34 Cal.2d 31, 41 [considering reasonableness of subdivision restrictions enacted pursuant to the Subdivision Map Act and observing “[q]uestions of reasonableness and necessity depend on matters of fact”]; Terry v. Atlantic Richfield Co. (1977) 72 Cal.App.3d 962, 966 [“Except where there is no room for a reasonable difference of opinion, the reasonableness of an act or omission is a question of fact, that is, an issue which should be decided by a jury”]; Robinson v. City and County of San Francisco (1974) 41 Cal.App.3d 334, 337 [“Where evidence is fairly subject to more than one interpretation, the question ofreasonablenessis a triable factual issue for the jury to decide”].)
B. Substantial Evidence Supported the Jury’s Finding that the CC&R’s Imposed Reasonable Restrictions.
Appellants’ next–and also new–contention is that the CC&R’s and Design Guidelines applicable to solar energy systems are unreasonable as a matter of law. Again, their position on appeal is contrary to the position they took below, where they requested and the jury received an instruction providing: “The parties stipulate that they are bound by the C.C.&Rs, Bylaws, and Design Guidelines which have been referred to as part of the Governing Documents and that such Governing Documents constitute the binding contract between Plaintiff and Defendants.” The jury was further instructed that appellants claimed Tesoro breached the governing documents by not complying with their provisions, and that Tesoro had the burden to show its procedures were fair and reasonable. Having submitted to the jury the question of whether Tesoro complied with the CC&R’s and Design Guidelines, appellants cannot now ignore the jury’s determination by attempting to change the question. (E.g., Kantlehner v. Bisceglia (1951) 102 Cal.App.2d 1, 6 [“Counsel may not so conduct themselves in the trial of a case as to lead the jury to proceed upon one theory and then seek to abandon that theory upon appeal and adopt another one”].)
[4] Again, appellants’ position below was correct. Generally, homeowners associations have the right to impose reasonable CC&R’s on improvements to property. (§ 1354, subd. (a) [“The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development”];Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 977 [“California and many other jurisdictions have long upheld such general covenants vesting broad discretion in homeowners associations or boards to grant or withhold consent to construction”]; Palos Verdes Homes Assn. v. Rodman (1986) 182 Cal.App.3d 324, 328 (Palos Verdes Homes) [“The right to enforce [632] covenants that require approval of construction has long been recognized in California”].) Generally, recorded use restrictions are accorded a presumption of validity and are enforced “unless they are wholly arbitrary, violate a fundamental public policy or impose a burden on the use of affected land that far outweighs any benefit.” (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 382.)
In Palos Verdes Homes, supra, 182 Cal.App.3d 324, the court determined that whether a homeowners association’s design restrictions on a solar energy system were reasonable was a question of fact. There, a homeowner installed a residential solar energy system after the Palos Verdes Homes Association had denied his application for installation on the basis that the system did not conform to its solar unit guidelines. The association prevailed on its declaratory relief claim at trial, and the court of appeal affirmed. According to the court: “The issue here is whether the Association’s Guidelines are a ‘reasonable restriction’ on the installation of solar units, as required by section 714. This is a question of fact to be determined by the trier of fact. Its conclusion will not be disturbed unless unsupported by substantial evidence. [Citation.]” (Id. at p. 328.) The court summarized the testimony of the association’s expert, who opined that the solar energy systems permitted by the association’s guidelines were comparable to the homeowner’s proposed system in performance and cost. (Id. at pp. 328–329.) Because the testimony showed that the “guidelines do not prohibit all solar units but are formulated to promote the installation of solar units which are comparable in costs and aesthetically acceptable,” the court concluded that substantial evidence supported the judgment. (Id. at p. 328.)
[5] The same result is required here. The CC&R’s provide that the approval or disapproval of applications for improvements “shall be in the sole and absolute discretion of the [ACC] and may be based upon such aesthetic considerations as the [ACC] determines to be appropriate.” The Design Guidelines temper this discretion with respect to the installation of solar energy systems. They specifically mirror section 714 and provide that the ACC may impose reasonable restrictions “that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or which allow for an alternative system of comparable costs, efficiency, and energy conservation . . . .” As in Palos Verdes Homes, supra, 182 Cal.App.3d at page 328, an expert testified about a comparable alternative system to appellants’ installation of 22 panels on their slope. Bergen explained that the installation of 16 to 20 panels in an area above the casita would yield the same performance efficiency but have a 14 percent reduction in output. He further testified that the proposed system would be less expensive to install than the slope panels. Bergen’s testimony established that the CC&R’s and Design Guidelines allowed for an alternative solar energy system of comparable costs and efficiency that did not significantly increase [633] the cost or decrease the efficiency of the system sought by appellants. Substantial evidence supported the jury’s conclusion that CC&R’s imposed reasonable restrictions that were in compliance with section 714.
[6] That the CC&R’s permit the ACC to consider the aesthetic impact of a solar energy system provides no basis for reversal. Nothing in the language of section 714 prohibits the consideration of aesthetic impacts. To the contrary, the provision in section 714 that “the application for approval shall be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property” indicates that the Legislature specifically anticipated that an evaluation of a proposed solar energy system–just as any other proposed improvement–would involve the consideration of aesthetics. (§ 714, subd. (e)(1).) Consistent with that language, the Palos Verdes Homes court concluded that guidelines primarily involving aesthetic considerations were reasonable and met the standards of section 714. (Palos Verdes Homes, supra,182 Cal.App.3d at p. 327.)
[7] We are likewise unpersuaded by appellants’ argument that Tesoro had the burden to propose a comparable alternative system at the time it denied appellants’ application. Again, nothing in the language of section 714 imposes such a burden on a homeowners association. The statute requires only that the denial of a solar energy system application be in writing and in a timely manner. (§ 714, subd. (e)(2).) Nor do the CC&R’s or Design Guidelines require that the ACC redesign a solar energy system that fails to garner approval. Instead, the burden is on the homeowner to submit an application that is complete and sufficient to generate approval. ACC member Collins testified that it has never been the practice of the ACC to propose an alternative design and that he did not feel qualified to redesign a solar energy system. The evidence established that once the ACC informed appellants of the bases of its denial, it was their burden to reapply for approval of a solar energy system utilizing an application that satisfied the procedural requirements in the CC&R’s and that addressed the ACC’s concerns about location, safety and aesthetics. Appellants failed to meet their burden
II. Appellants’ Procedural Claims.
Notwithstanding the bases for Tesoro’s denial of appellants’ solar energy system application, appellants contend that the process by which Tesoro denied the application and initiated and tried this action was invalid. Specifically, they contend that the ACC’s denial was untimely, inadequately mailed and incomplete; that the lawsuit was improperly initiated without a vote of the entire association; and that Tesoro should not have received a jury trial because it did not timely pay its jury fees. With the exception of the payment [634] of jury fees, appellants submitted these issues to the jury for resolution, asserting during closing argument that the key question in the matter was whether Tesoro followed the appropriate procedures. We find no merit to any of appellants’ procedural challenges.
A. Substantial Evidence Established That Tesoro’s Denial Complied with the CC&R’s.
The jury answered “yes” to the question of whether “Plaintiff respond[ed] to Defendants’ application for approval or disapproval of the installation of their solar energy system within the time limits set forth in the Governing Documents?” We review a jury’s findings of fact under the deferential substantial evidence standard. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053 superseded by statute in another point as stated in DeBarard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.) According to this standard, “‘”the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below.'” (Ibid.) We must view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. (Ibid.) We are not at liberty to reweigh the evidence or judge the credibility of witnesses. (Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 849.)
According to a provision in the section of the CC&R’s governing improvement applications, “all approvals given pursuant to this Article shall be in writing; and any request for approval which has not been approved or disapproved, in writing, within forty-five(45) days from the date of receipt of all documentation required to be submitted by the Committee shall be deemed approved . . . .” Here, the evidence showed that appellants submitted their solar energy system application on October 2, 2007. Prime testified that Martin personally delivered the application on that date, and the application itself bore a “received” stamp dated October 2, 2007. The jury was entitled to discredit Martin’s alternating recollection that he submitted the application on September 27 or October 1, 2007. (E.g., Moreno v. Sayre(1984) 162 Cal.App.3d 116, 121 [“It is the province of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses”].)
The ACC denied appellants’ application by letter dated November 8, 2007, a date within 45 days of receipt of appellants’ application. Thus, substantial evidence supported the jury’s finding that Tesoro responded within the time limits provided by the CC&R’s. The evidence further showed, however, that [635] appellants did not receive the denial letter until November 17, 2007 because it was misaddressed. But the jury was instructed that Tesoro had the burden to prove that it “did all, or substantially all, of the significant things that the Governing Documents required it to do or that it was excused [from] doing those things.” It was well within the jury’s province to conclude that Tesoro substantially complied with its obligations under the CC&R’s notwithstanding appellants’ receipt of the denial letter 46 days after they submitted their application. (See Moreno v. Sayre, supra,162 Cal.App.3d at p. 121 [“When two or more inferences can be reasonably drawn from the facts, the reviewing court is without power to substitute its deductions for those of the jury”].) The jury could have concluded that the one-day delay was inconsequential given that appellants had already signed the contract to proceed with the installation of their solar energy system several days before the time to rule on their application had expired.
The evidence further showed that Prime mailed the denial letter by regular mail. We reject appellants’ argument that this evidence showed Tesoro failed to comply with section 16.11 of the CC&R’s, which provides in relevant part: “Any notice permitted or required by this Declaration shall be considered received on the date the notice is personally delivered to the recipient or forty-eight (48) hours after the notice is deposited in the United States mail, first-class, registered or certified mail, postage prepaid and addressed to the recipient at the address which the recipient has provided to the Association . . . .” Contrary to appellants’ suggestion that this provision requires notices to be sent by registered or certified mail, the provision is plainly limited to specifying a date by which notice is deemed received if it is sent by first-class, registered or certified mail. In short, appellants’ argument affords no basis to disturb the jury’s finding that Tesoro did all or substantially all of the significant things it was required to do under the CC&R’s.
Finally, appellants contend that substantial evidence did not support the jury’s affirmative answer to the question “Did Plaintiff respond to Defendants’ application for approval or disapproval of their solar energy system in the same manner as any other applications for a change or modification to property?” They argue that the denial letter improperly failed to articulate the bases for the denial. (See § 1378, subd. (a)(4) [“If a proposed change is disapproved, the written decision shall include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision by the board of directors”].) The evidence belies their claim. Martin himself testified that attached to the November 2007 denial letter were four handwritten comments from the ACC indicating that the casita roof should be considered as an alternate location, the site plan failed to show dimensions and setbacks, the application omitted any provision for slope maintenance and the application lacked photographs of the proposed site. Martin conceded that he read the comments when he received the denial [636] letter. He further conceded that his application in fact lacked the requisite items identified by the ACC as missing. Later, in January 2008, the ACC approved the rooftop panel installation but disallowed the panels on the slope for the reasons stated earlier and discussed by all parties at their January 23, 2008 meeting. Substantial evidence showed that Tesoro provided an adequate explanation of why appellants’ solar energy system application was ultimately denied in part.
The evidence further showed that to the extent Tesoro denied appellants’ application, it adequately advised him of his appeal rights. (§ 1378, subd. (a)(4).) Though the January 2008 letter did not include information about appeal rights, Martin testified that at all times he had in his possession copies of the CC&R’s and Design Guidelines and was aware of the provision for appeal contained in the CC&R’s. Section 7.2.8 of the CC&R’s provides a detailed explanation of a homeowner’s appeal rights in the event the ACC disapproves an application. Evidence that appellants had been advised of their appeal rights through the CC&R’s supported the jury’s findings that Tesoro did all or substantially all it was required to do under California law and appropriately responded to appellants’ application in a manner required for all similar applications. (See Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29 [“Substantial compliance, as the phrase is used in the decisions, means actual compliance in respect to the substance essential to every reasonable objective of the statute”].
B. Substantial Evidence Established That Tesoro Properly Brought This Action in Accordance with the CC&R’s.
As part of its claim that Tesoro failed to comply with its own CC&R’s, appellants sought to show that Tesoro improperly initiated this action without a full vote of the membership. fn. 5 The jury resolved this question against appellants, concluding that Tesoro did all or substantially all it was required to do under the CC&R’s. Appellants do not contend that the jury should not have resolved this question, but instead simply choose to ignore that conflicting evidence was presented on the issue, the jury received multiple instructions on contract interpretation and the jury decided the issue. Where extrinsic evidence has been properly admitted to aid in the interpretation of a contract, we uphold a reasonable construction of the agreement by the trier of fact which is supported by substantial evidence. (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746–747.)[637]
During cross-examination, appellants’ counsel questioned Collins about section 4.1.2(k) of the CC&R’s, which provides in part that Tesoro has the right “to prosecute or defend, in the name of the Association, any action affecting or relating to the Project or the personal property thereon . . . provided, however, that without the prior vote or written consent of a majority of the voting power of the Members of the Association, the Board may not institute any legal proceeding (including any arbitration or judicial reference proceeding) against any person or entity the cost of which could reasonably be expected to exceed Two Thousand Five Hundred Dollars ($2,500.00),” including an estimate of attorney fees and costs. Collins testified that no poll or vote of the homeowners was taken prior to Tesoro’s initiating this action against appellants. Martin similarly testified that he was unaware of any meeting of the homeowners where they were given an opportunity to vote on or receive notice of any intent to file a lawsuit, nor was he given any notice of the special assessment ultimately imposed to finance the litigation.
On redirect examination, however, Collins testified that the Tesoro Board had relied on other provisions in the CC&R’s–as well as the advice of counsel–to conclude it had the ability to initiate suit without a full vote. Specifically, it relied on section 4.1.2(e), which gives Tesoro the right “to enforce, in its discretion, the provisions of this Declaration, the Bylaws, Articles and Rules and Regulations of the Association . . . .” He testified that counsel had advised him section 4.1.2(k) was never intended to limit the Tesoro Board’s discretion under section 4.1.2(e) to file suit against a homeowner. The Tesoro Board also relied on section 10.9 of the CC&R’s, which provides: “Notwithstanding anything herein to the contrary, no judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by a majority of the voting power of the membership. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration,” the collection of assessments, challenges to ad valorem taxes and counterclaims brought by Tesoro.
The owner of Euclid Management, Glennon Gray, further testified that he was familiar with section 4.1.2(k) of the CC&R’s and that the provision did not operate to prevent Tesoro from filing an action against a single homeowner to enforce the CC&R’s. Rather, his understanding was that it applied when a homeowners association was contemplating suing the developer.
[8] On the basis of this testimony, substantial evidence supported the jury’s determination that Tesoro complied with the CC&R’s in bringing this action without a full vote of the homeowners. (See Rosen v. E. C. Losch Co. (1965) 234 Cal.App.2d 324, 331 [“‘The practical construction placed upon the agreement by the parties is, of course, substantial [638] evidence of their intent'”]; Nicolaysen v. Pacific Home (1944) 65 Cal.App.2d 769, 773 [“‘The law recognizes the practical construction of a contract as the best evidence of what was intended by its provisions'”].
C. Tesoro Properly Received a Jury Trial.
Appellants’ final procedural challenge is that Tesoro should not have received a jury trial because it did not post jury fees in a timely manner. Before trial, appellants argued that Tesoro had waived its right to a jury trial on the ground that it had not posted jury fees in accordance with Code of Civil Procedure section 631, subdivision (b), which specifies that jury fees must be deposited “at least 25 calendar days before the date initially set for trial” by “[e]ach party demanding a jury trial . . . .” Tesoro conceded that it had posted jury fees 25 days before the date set for the actual trial, which was timely according to Los Angeles County Superior Court Local Rule 5.0. Following briefing and argument by counsel, the trial court permitted a jury trial to go forward, reasoning that Tesoro had demonstrated an inadvertent mistake in relying on the local rules and appellants had failed to demonstrate any prejudice from proceeding with a jury trial.
[9] Generally, the failure to deposit jury fees at least 25 calendar days before the date initially set for trial constitutes a waiver of the right to a jury trial. (Code Civ. Proc., § 631, subds. (b) & (d)(5); Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 956.) Nonetheless, in the event of a waiver, the trial court retains discretion to allow a trial by jury. (Code Civ. Proc., § 631, subd. (e); Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 810; Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703–1704.) In exercising such discretion, courts are mindful of the requirement “to resolve doubts in interpreting the waiver provisions of section 631 in favor of a litigant’s right to jury trial. [Citations.]” (Grafton Partners v. Superior Court, supra,at p. 956.) Accordingly, “[w]here the right to jury is threatened, the crucial focus is whether any prejudice will be suffered by any party or the court if a motion for relief from waiver is granted. [Citation.] A trial court abuses its discretion as a matter of law when ‘. . . relief has been denied where there has been no prejudice to the other party or to the court from an inadvertent waiver. [Citations.]’ [Citations.]” (Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 104.)
Here, the trial court properly exercised its discretion to allow the case to be heard before a jury. Tesoro demonstrated that it made an inadvertent mistake by relying on the local rule timeline. (Winston v. Superior Court (1987) 196 Cal.App.3d 600, 602–603 [inadvertent waiver shown where failure to post fees occurred from inconsistency in the time requirement among statutes].) And neither below nor on appeal have appellants [639] demonstrated any prejudice from a trial by jury. (See Johnson-Stovall v. Superior Court, supra, 17 Cal.App.4th at p. 811 [“The mere fact that trial will be by jury is not prejudice per se”]; Gann v. Williams Brothers Realty, Inc., supra, 231 Cal.App.3d at p. 1704 [“The prejudice which must be shown from granting relief from the waiver is prejudice from the granting of relief and not prejudice from the jury trial”].) “The court abuses its discretion in denying relief where there has been no prejudice to the other party or to the court from an inadvertent waiver.” (Gann v. Williams Brothers Realty, Inc., supra, at p. 1704.) Indeed, it would have been an abuse of discretion for the trial court to deny relief here.
III. Appellants’ Evidentiary Issues.
In two related arguments, appellants contend that the trial court abused its discretion by permitting Bergen to testify as an expert on Tesoro’s behalf and by not permitting them to present rebuttal expert testimony. We review the trial court’s admission or exclusion of expert testimony under the deferential abuse of discretion standard. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972.)
A. Allowing Bergen to Testify was a Proper Exercise of Discretion.
Bergen, a licensed contractor and electrical engineer who had installed over 2,000 solar energy systems, evaluated appellants’ solar energy system as installed and opined that the slope location was inappropriate based on a number of factors. He further testified that a different configuration of panels could be more efficient and cost-effective. He also opined about how removal of the slope panels and replacement with his suggested alternative would affect the efficiency and cost of appellants’ solar energy system.
[10] Appellants contend that it was an abuse of discretion to admit Bergen’s testimony because he lacked any “special knowledge” that would qualify him as an expert. (Evid. Code, § 720, subd. (a) [“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates”].) They contend that the matters about which he testified were matters of common knowledge inappropriate for expert testimony. (See Evid. Code, § 801, subd. (a) [expert opinion is admissible when it is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact”]; People v. Torres (1995) 33 Cal.App.4th 37, 45 [“Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness”].) They claim that [640] Bergen’s testimony about the reduction in efficiency resulting from a modification to appellants’ system could have been calculated using simple math–that is, a reduction of 22 panels from a total of 56 would have equaled an approximate 40 percent reduction in efficiency.
[11] But the calculation was not so simple. Bergen explained that efficiency is calculated taking into account the angle of the solar panels, the orientation of the panels in relation to the sun, the inverter design, surface area and shade factor. He used an incronometer to measure the angle of the slope panels. In describing the design of his alternative system, Bergen explained how an installation of fewer than 22 panels would result in only a minimal reduction in output. He further testified about the cost of labor and materials for his alternative design. All of these matters were beyond the jury’s common knowledge. (See Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38 [witness qualifies as an expert where he “has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth, and ‘no hard and fast rule can be laid down which would be applicable in every circumstance'”].)
Nor are we persuaded by appellants’ renewed argument that Bergen should not have been permitted to testify because he described an alternative solar energy system that Tesoro did not propose at the time it disallowed appellants’ proposed system. Again, nothing in either section 714 or the CC&R’s required Tesoro to design an alternative system, and the evidence established that it was not the ACC’s practice to redesign an applicant’s proposal. The trial court properly exercised its discretion to permit Bergen to testify about the efficiency and cost of appellants’ system as compared to an alternative system
B. Appellants Stipulated They Would Not Offer Expert Testimony in Rebuttal.
As a means of resolving Tesoro’s motion to preclude appellants from offering any expert testimony because of their failure timely to designate experts, the parties stipulated that appellants would be permitted to call Tesoro’s experts and their own experts to rebut the factual bases for any opinions offered by Tesoro’s experts. Appellants specifically agreed, however, that they would not be permitted to call their own experts to offer rebuttal opinions. Notwithstanding this stipulation, they now argue that the trial court abused its discretion by not permitting them to call rebuttal witnesses to offer their own expert opinions. By stipulating not to offer expert opinions, appellants have waived any claim on appeal that the trial court abused its discretion by enforcing the stipulation. (E.g., In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501 [“an appellant waives [641] his right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal”].)
[12] Even absent any stipulation, we would find no abuse of discretion. The general rule, set forth in Code of Civil Procedure section 2034.300, is that an undesignated expert witness may not testify. An exception to that rule is provided in Code of Civil Procedure section 2034.310, which permits a party to call an undesignated expert witness to testify if the expert has already been designated by another party, or if “[t]hat expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial. This impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation for any opinion by any other party’s expert witness, but may not include testimony that contradicts the opinion.” (Code Civ. Proc., § 2034.310, subds. (a) & (b).) Trial courts strictly construe the foundational fact requirement in Code of Civil Procedure section 2034.310 “so as to ‘prevent a party from offering a contrary opinion of his expert under the guise of impeachment.’ [Citation.]” (Mizel v. City of Santa Monica (2001) 93 Cal.App.4th 1059, 1068.)
Here, there was no indication that any of appellants’ three proposed rebuttal expert witnesses satisfied the requirements of the statutory exception. fn. 6 Appellants sought to call Jamie Muniak, a certified property manager, to offer his own opinions about customs and practices in the property management industry. They also called Marco Suarez, the owner of Advanced Solar Electric, as a percipient witness, but the trial court sustained objections to questions designed to elicit expert opinion about solar energy system installations. Finally, appellants sought to call a contractor, identified as Mr. Alcantar, to offer an opinion about the cost of Bergen’s proposed alternative system and testify about his proposed bid. His testimony would have been based on his construction experience and did not include any testimony designed to establish the falsity or nonexistence of any fact relied on by Bergen in making his costs estimate. In any event, Martin was permitted to testify about other estimates he had received to construct the solar energy system proposed by Bergen.
[13] “The trial court is vested with a sound discretion as to the permissible scope of evidence offered in rebuttal. [Citation.]” (Johnston v. Brewer (1940) 40 Cal.App.2d 583, 588.) Because appellants’ proffered rebuttal expert testimony failed to satisfy the requirements of Code of Civil Procedure section 2034.310, the trial court properly exercised its discretion in precluding such testimony.[642]
DISPOSITION
The judgment is affirmed. Tesoro is awarded its costs on appeal. fn. 7
Ashmann-Gerst, J., and Chavez, J., concurred.
FN 1. We occasionally refer to appellant Martin Griffin individually by first name to avoid confusion and not out of disrespect.
FN 2. At trial, Martin testified that he believed he submitted the application on September 27, 2007.
FN 3. The ACC had cancelled its regularly-scheduled October meeting because the area was evacuated for a fire. For that reason, it did not consider appellants’ application until November 6, 2007.
FN 4. Unless otherwise indicated, all further statutory references are to the Civil Code.
FN 5. We decline to address appellants’ argument on this issue to the extent it is premised on the denial of their summary judgment motion. (E.g., California Housing Finance Agency v. Hanover/California Management & Accounting Center, Inc. (2007) 148 Cal.App.4th 682, 688-689 [denial of summary judgment unreviewable after a full trial on the same issues]; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833-836 [same].)
FN 6. That appellants failed to make an offer of proof of their witnesses’ proposed testimony is yet an independent reason why any claim of error has been waived. (E.g., In re Mark C. (1992) 7 Cal.App.4th 433, 444.)
FN 7. In its respondent’s brief, Tesoro has requested an award of attorney fees on appeal. We decline to consider its request. California Rules of Court, rule 3.1702(c) sets forth the procedure for claiming attorney fees on appeal. (See also Cal. Rules of Court, rule 8.278(d)(2).)
Civil Code Section 4745 limits the degree to which an association’s governing documents may prohibit or restrict the installation of an electric vehicle (“EV”) charging station in a members separate interest, or in common area or exclusive use common area:
“A covenant, restriction or condition contained in any deed, contract, security instrument or other instrument affecting the transfer or sale of any interest in a common interest development, and any provision of a governing document, as defined in Section 4150, that either effectively prohibits or unreasonably restricts the installation or use of an [EV] charging station within an owner’s unit or in a designated parking space, including, but not limited to, a deeded parking space, a parking space in an owner’s exclusive use common area, or a parking space that is specifically designated for use by a particular owner, or is in conflict with [Section 4745], is void and unenforceable.” (Civ. Code § 4745(a).)
“Reasonable Restrictions” Permitted
Civil Code Section 4745 permits “reasonable restrictions” on the installation or use of an EV charging station. A “reasonable restriction” is defined as a restriction that does “not significantly increase the cost of the station or significantly decrease its efficiency or specified performance.” (Civ. Code § 4745(b)(2).)
Application & Timeline for Approval
Where association approval for the installation or use of an EV charging station is required, the application must be processed and approved in a manner consistent with that utilized for approving an application for modifications to the owner’s property. (Civ. Code § 4745(e); See also “Architectural Application & Approval Process.”) Approval or denial must be in writing, and must not be willfully avoided or delayed. If no approval or denial is received within sixty (60) days of submission, the application will be deemed approved unless the delay is due to a reasonable request for the owner to provide additional information. (Civ. Code § 4745(e).)
Common Area or Exclusive Use Common Area; Approval Requirements
Where an owner intends on installing an EV charging station within common area or exclusive use common area (i.e., the owner’s designated exclusive use parking space), the owner must first obtain approval from the association. The association must approve the installation if the owner agrees in writing to do all of the following:
- Comply with the association’s architectural guidelines;
- Use a licensed contractor for the installation;
- Provide a certificate of insurance within fourteen (14) days of approval; and
- Pay for the electricity usage costs associated with the use of the EV charging station, as well as the costs associated with the installation of the station. (Civ. Code § 4745(f)(1)(A)-(D).)
The EV charging station must also meet “applicable health and safety standards and requirements imposed by state and local authorities, and all other applicable zoning, land use, or other ordinances, or land use permits.” (Civ. Code § 4745(c).)
Exclusive (“Private”) Use EV Charging Station on Common Area
Installation of an EV charging station in a common area (not within an exclusive use common area parking space) for the exclusive (or “private”) use of a particular owner must be allowed by the association “only if installation in the owner’s designated parking space is impossible or unreasonably expensive.” (Civ. Code § 4745(g).) Under such circumstances, the association is required to “enter into a license agreement with the owner for the use of the space in a common area, and the owner shall comply with all” of the approval requirements listed above. (Civ. Code § 4745(g).)
Open (“Public”) Use EV Charging Station on Common Area
The association or owners may install an EV charging station in common area for the use of all members of the association. In such cases, the association is required to “develop appropriate terms of use for the charging station.” (Civ. Code § 4745(h).)
Creation of New Parking Space
An association is permitted to create a new parking space where one did not previously exist in order to facilitate the installation of an EV charging station. (Civ. Code § 4745(i).)
Common Area Access for Utility Lines or Meters
Civil Code Section 4600 restricts the degree to which a board may grant exclusive use of any portion of the association’s common area to a member. (See “Granting Exclusive Use of Common Area.”) Those limitations do not apply to a grant of exclusive use that is needed:
- “to install and use an [EV] charging station in an owner’s garage or a designated parking space that meets the requirements of Section 4745, where the installation or use of the charging station requires reasonable access through, or across, the common area for utility lines or meters.” (Civ. Code § 4600(b)(3)(H).); or
- “to install and use an [EV] charging station through a license granted by an association under Section 4745.” (Civ. Code § 4600(b)(3)(I).)
Owner Responsibilities
The owner (and each successive owner) of an EV charging station is responsible for all of the following:
- Any cost associated with damage to the EV charging station, common area, exclusive use common area, or separate interests resulting from the installation, maintenance, repair, removal, or replacement of the EV charging station;
- Any cost associated with the maintenance, repair, and replacement of the EV charging station, and any cost associated with removing the EV charging station, including the restoration of the common area after removal;
- The electricity cost associated with the use the EV charging station; and
- Disclosing to prospective buyers the existence of any EV charging station owned by the owner and the owner’s responsibilities under Civil Code Section 4745. (Civ. Code § 4745(f)(2)(A)-(D).)
Insurance Requirement
The owner of an EV charging station, regardless of whether it is installed in the owner’s unit or in the common area, is required to “at all times, maintain a liability coverage policy. The owner that submitted the application to install the charging station shall provide the association with the corresponding certificate of insurance within 14 days of approval of the application. That owner and each successor owner shall provide the association with the certificate of insurance annually thereafter.” (Civ. Code § 4745(f)(3).)
Violation & Enforcement of Section 4745
An association that “willfully violates” the requirements of Civil Code Section 4745 is liable to the applicant or other party for actual damages and a civil penalty in an amount not to exceed one thousand dollars ($1,000.00). (Civ. Code § 4745(j).) In any action “by a homeowner requesting to have an [EV] charging station installed and seeking to enforce compliance with [Civil Code Section 4745], the prevailing plaintiff shall be awarded reasonable attorney’s fees.” (Civ. Code § 4745(k).)
EV-Dedicated TOU (time of use) Meters
Effective January 1, 2019, new Section 4745.1 was added to the Civil Code as a result of SB 1016. Section 4745.1 basically extends much of Section 4745’s requirements associated with the installation and use of EV charging stations to the installation and use of EV-dedicated “TOU” (time of use) meters. An EV-dedicated TOU meter is an electric meter supplied and installed by an electric utility, that is (a) separate from, and in addition to, any other electric meter, (b) is devoted exclusively to the charging of EVs, and (c) that tracks the time of use when charging occurs. (Civ. Code § 4745.1(d).)
The Americans with Disabilities Act of 1990 (ADA), 42 USC §§ 3601-3631, was enacted by the U.S. Congress. It provides broad civil rights protections to persons with defined disabilities. Those protections prohibit, under certain circumstances, discrimination on the basis of disability similar to those which prohibit discrimination on the basis of race, national origin, sex and religion.
Public Accommodations
Title III of the ADA addresses discrimination in areas of public accommodations and commercial facilities. It provides that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. §1282(a).) Under most circumstances, the residential and recreational facilities of a private common interest development do not constitute places of “public accommodation” which would be subject to ADA requirements. Those facilities are not “designed and intended to provide services, goods, privileges to members of the public, usually in exchange for payment (and when not requiring payment, often motivated by some other advantage to the entity providing the accommodation, such as promoting its good will to the community.).” (Carolyn v. Orange Park Community Association (2009) 177 Cal.App.4th 1090, 1104.)
There are, however, facilities within a common interest development that may be held to be places of public accommodation. Those facilities include:
- A sales or rental office receiving public traffic;
- Commercial facilities that are part of a residential project;
- A meeting room leased to the general public for a fee, but not one used solely by association members;
- A swimming pool, tennis court, or other recreational facility that is open to members of the general public; and
- Day care centers, senior citizen centers, refreshment stands, and meeting rooms that are occasionally rented to business or civic groups. (Carolyn v. Orange Park Community Assn. (2009) 177 Cal.App.4th 1090, 1103.)
Public Use of Private Common Area Facilities
A common interest development’s common area facilities (i.e., parking lots, swimming pools, equestrian trails, etc.) which are not open to members of the general public are not places of public accommodation that are subject to ADA requirements. Additionally, those facilities do not “transform into public accommodations merely because [the association] does not actively exclude members of the public from using [them].” (Carolyn v. Orange Park Community Assn. (2009) 177 Cal.App.4th 1090, 1104.)
Accommodations For Disabled Residents
A private homeowners association may be required to allow a disabled resident to make alterations to the resident’s unit or to the association’s common area at the resident’s expense in order to accommodate the resident’s disability. (See “Architectural Accommodations for Disabled Residents.”)
(2009) 177 Cal.App.4th 1090
[Discrimination; ADA Compliance] HOA’s private common area facilities not held to be places of “public accommodation” subject to Americans with Disability Act (ADA) requirements
Law Offices of B. Paul Husband and B. Paul Husband; and Cheryl Alison Skigin for Plaintiff and Appellant.
Kulik, Gottesman, Mouton & Siegel and Mitchell S. Brachman for Defendant and Respondent.
OPINION
IKOLA, J.-
Defendant Orange Park Community Association (OPCA) fn. 1 maintains and exercises control over a series of recreational trails on portions of the association “common area” (Civ. Code, § 1351, subd. (b)). The trails border Broadmoor Park homes and Saddlehill development, OPCA residential developments in Orange Park Acres. The OPCA trails connect to a larger system of trails maintained by other associations or by government entities (such as Orange County and nearby municipalities). In 2007, citing safety concerns for “horseback riders and trail hikers,” as well as damage to trail fencing, OPCA installed barriers on its trail entry points to prevent vehicles from utilizing the trails.
Plaintiff Evan Carolyn sued OPCA, alleging he “made plans to use the OPCA Trail System by means of a horse drawn carriage in or about early July, 2007, but discovered that the trails were no longer available for use by disabled people such as himself in a horse drawn carriage and/or other horse drawn vehicle as a result of the alteration of the OPCA Trail System by OPCA . . . .” Based on these factual allegations, Carolyn pleaded five separate causes of action: (1) for violation of title III of the Americans with Disabilities Act (42 U.S.C. § 12181 et seq.; the ADA); (2) for violation of the California Disabled Persons Act (Civ. Code, §§ 54, 54.1); (3) for violation of the Unruh Civil Rights Act (Civ. Code, §§ 51-52); (4) for violation of Health and Safety Code section 19955 et seq.; and (5) for violation of Government Code section 4450 et seq.
The court granted summary judgment in favor of OPCA. The court based its ruling on the determination “that the trails are not a ‘public accommodation’ within the definition of the Americans with Disabilities Act, California Disabled Persons Act, Unruh Act, Government Code § 4450 and Health and Safety Code § 19955. Unless the trails are a public accommodation within the meaning of the statutes, there is no violation.” Carolyn appeals the judgment, claiming the court erred in concluding the trails are not a public accommodation. We affirm.
FACTS
OPCA filed a summary judgment motion based almost entirely on the argument that its trails did not constitute a public accommodation under [1094] the ADA or state law. Carolyn filed a summary judgment motion as well, but the court denied his motion and the denial of Carolyn’s motion is not before us on appeal.
In support of its motion, OPCA filed declarations of the president of OPCA’s Board of Directors and a member of the Arena and Trails Committee for OPCA, properly referencing this evidence by way of a separate statement of material facts. (Code Civ. Proc., § 437c, subd. (b)(1).) We set forth herein only those material facts identified by OPCA that are pertinent to our review, as well as allegedly disputed material facts offered by Carolyn in opposition to OPCA’s motion. (Code Civ. Proc., § 437c, subd. (b)(3).)
OPCA’s Separate Statement
We deem the following six facts set forth in OPCA’s separate statement to be undisputed, either because Carolyn: (1) failed to meet his obligation of unequivocally stating whether the fact was disputed or undisputed (Code Civ. Proc., § 437c, subd. (b)(3)); (2) raised unmeritorious objections to competent evidence; or (3) presented evidence that failed to raise a triable issue with regard to OPCA’s stated fact.
(1) “[OPCA] is a non-profit corporation operating, organized and existing under the laws of the State of California.” (2) “Plaintiff Evan Carolyn is not a homeowner or resident of [OPCA], does not pay assessments and is not entitled to the protections of the Association’s CC&Rs.” (3) “[OPCA’s] trails are privately owned as common area of the Association and are operated by a Board of Directors . . . .” fn. 2 (4) “Under Article IV, Section 1 of the Association CC&Rs, ‘each member of the Association has a right and easement of access, use and enjoyment in and to the Common Area and such easement shall be appurtenant to and shall pass with the title to every Lot subject to assessment.” (5) “The Arena and Trails Committee made recommendations to the Association Board of Directors for ways to remedy dangerous conditions on the Association’s trails.” fn. 3 (6) “[OPCA] is a private entity which funds the [1095] maintenance and operation of its Common Area through monthly assessments paid by the Residential Lot Owners.”
Carolyn’s Additional Material Facts
Carolyn did not “set forth plainly and concisely any other material facts” he contended were disputed (i.e., by separately listing additional disputed facts in his separate statement). (Code Civ. Proc., §437c, subd. (b)(3).) Nevertheless, we set forth herein the relevant evidence submitted by Carolyn bearing on the question of whether OPCA’s trails are “public accommodations.”
Of primary importance to Carolyn’s opposition is certain deposition testimony. Utilizing leading questions, counsel for Carolyn elicited key admissions from OPCA representatives at their depositions. An OPCA director admitted “[t]he OPCA board doesn’t know who actually takes the trail on a daily basis,” “there’s no security guard at the front of Orange Park Acres or [OPCA] that checks everyone in and takes IDs when they come in to” the community of Orange Park Acres, and the OPCA trail system is “open to the public.” The same director agreed with the following hypothetical question: “Anyone in Southern California who knows where the OPCA trail system is could put their horse in the trailer, drive over to Orange Park Acres park, unload the trailer, saddle up the horse and go for a ride on the OPCA trails.” A second OPCA director admitted “a rider could ride from someplace well outside the OPCA trail system onto . . . the OPCA trails readily” and “[t]he OPCA trails are really open to the public in terms of access.” A member of the OPCA Arena and Trails committee admitted “[p]eople other than just the residents of OPCA ride horses on the OPCA trail system” and “the OPCA trail system is a system that can be accessed by a member of the public at any time.”
Carolyn also relied on several declarations in support of his opposition papers and Carolyn’s summary judgment motion. Cheryl A. Skigin, one of Carolyn’s attorneys, declared she has owned a home and lived in the Broadmoor-Saddlehill subdivision since 1999, and that she has lived in Orange Park Acres since 1991. Construed liberally, Skigin’s declaration indicates she and others she knows (who are not members or residents of OPCA) have ridden horses on “trails which are the subject of this litigation” since 1991 (the declaration is not clear as to whether the “trails which are the subject of this litigation” are OPCA’s trails or the interconnected “trail system” into which OPCA’s trails feed). Skigin also attests: “There is no [1096] distinction between where the trails which are within the Broadmoor-Saddlehill development begin and where the trails which are part of the County of Orange, City of Orange end or commence. Certain trails, such as the trail referred to as Pig Trail border both Broadmoor-Saddlehill and the property in the unincorporated portion of Orange County, the City of Orange and potentially other developments within the Orange Park Acres area. The trails are integrated and form a network.”
The remainder of Skigin’s declaration, as well as the declaration of Carolyn’s other attorney, B. Paul Husband, relates to the issue of whether the OPCA trails affect interstate commerce as required to invoke the applicability of the ADA. As discussed in the analysis below, we do not reach the question of whether the trails affect interstate commerce. Thus, we need not lay out in detail Carolyn’s evidence attempting to establish this component of his ADA claim. Nor need we wrestle with whether the court properly sustained evidentiary objections to the Skigin and Husband declarations. Even if the evidence is allowed, our analysis is unaffected.
Although Carolyn’s declaration was not specifically submitted in opposition to OPCA’s motion, we set forth pertinent portions to assist us in our review. “At this time, I am too weak from a muscular standpoint, and my balance is too poor to ride a horse. It is now too difficult for me to maintain my grip with my legs if I were to try to ride astride a horse, plus I cannot maintain my balance sufficiently to ride.” “I would like to participate in an equestrian sport by means of riding in a horse-drawn carriage, or some other appropriate horse-drawn vehicle. I live near Orange Park Acres, and I am aware of the [OPCA] Trail System. . . . I made plans to use the [OPCA] Trail System by means of a horse-drawn carriage in or about July 2007, but to my great dismay, I found that the trails in the OPCA Trail System were no longer available for my use because the OPCA Trail System had been blocked to use by horse-drawn carriages by means of large posts having been embedded in the ground at entrances to the Trails.” “I had intended to use the OPCA Trail System two or three times per month, or more, if my health permitted.” “Because of my disability, the only way that I could have access to the equestrian trails of the OPCA Trail System is in a horse-drawn carriage.”
DISCUSSION
The court found the trails did not constitute a public accommodation as a matter of law. This determination, according to the trial court, precluded Carolyn from seeking relief under any of his five causes of action. (See Code [177 Cal.App.4th 1097] Civ. Proc., § 437c, subd. (o)(1) [cause of action has no merit if “[o]ne or more of the elements of the cause of action cannot be separately established”].) Carolyn appears to concede that establishing the trails are “public accommodations” is an element of each of his causes of action, as his briefs do not argue otherwise. We will review de novo whether there is any triable issue of material fact on the classification of the trails as public accommodations. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
We will not address whether OPCA actually discriminated against Carolyn under any of the causes of action pleaded by Carolyn. (See 42 U.S.C. § 12182; Civ. Code, §§ 51, subd. (b), 54, subd. (a), 54.1, subd. (a).) This issue was not the subject of OPCA’s motion for summary judgment and played no role in the court’s grant of OPCA’s motion for summary judgment. We emphasize at the outset of our analysis that the merits of Carolyn’s discrimination claim (i.e., OPCA discriminated against him as a disabled person by blocking vehicle access to the trails) should be kept separate from the issue of whether OPCA’s trails are a public accommodation. It is also unnecessary to reach the question of whether the trails affect interstate commerce. The court did not grant summary judgment to OPCA on that ground and the state law causes of action cannot be decided with regard to the trails’ effect (or lack thereof) on interstate commerce.
Public Accommodation
Title III of the ADA fn. 4 provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182(a), italics added.)
[1] Under the ADA, “[t]he phrase ‘public accommodation’ is defined in terms of 12 extensive categories . . . .” (PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 676.) Two of the 12 public accommodation categories listed in the ADA are arguably applicable to the OPCA trails: “The following private entities are considered public accommodations . . . , if the operations of such entities affect commerce –” “a park, [1098] zoo, amusement park, or other place of recreation”; “a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.” (42 U.S.C. § 12181(7).) The ADA’s “legislative history indicates [the public accommodation categories] ‘should be construed liberally’ to afford people with disabilities ‘equal access’ to the wide variety of establishments available to the nondisabled.” (Martin, at pp. 676-677 [professional golf tour is public accommodation].) For instance, a private marina, which rents slips to an exclusive clientele in Marina Del Rey, is a public accommodation under the ADA even though marinas are not specifically identified by name in title III of the ADA. (Nicholls v. Holiday Panay Marina, L.P. (2009) 173 Cal.App.4th 970-972 [also holding “restricted access does not, by itself, make an accommodation nonpublic”].) “Whether a particular facility is a ‘public accommodation’ under the ADA is a question of law.” (Jankey v. Twentieth Century Fox Film Corp.(C.D.Cal. 1998) 14 F.Supp.2d 1174, 1178 (Jankey).)
[2] California law defines “public accommodation” in a different manner. Health and Safety Code section 19955 defines “‘public accommodation'” to mean “a building, structure, facility, complex, or improved area which is used by the general public and shall include auditoriums, hospitals, theatres, restaurants, hotels, motels, stadiums, and convention centers.” The structural access standards promulgated in connection with Health and Safety Code section 19955 et seq. and Government Code section 4450 et seq. “‘give meaning to the public accommodation law prohibiting discrimination against the handicapped . . . .'” (Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 520.)
Under applicable provisions of the Disabled Persons Act (Civ. Code, § 54 et seq.), “[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to . . . places of public accommodation, amusement, or resort, and other places to which the general public is invited . . . .” (Civ. Code, § 54.1, subd. (a)(1), see also § 54, subd. (a) [“Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, . . . public facilities, and other public places”].)
The Unruh Civil Rights Act entitles all persons, regardless of “sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation . . . to . . . full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (b).) As Carolyn has not argued otherwise, we assume, without deciding, that his Unruh Civil Rights Act claim can only proceed if the trails are deemed a public accommodation. [1099]
Common Areas and Public Accommodations
Stated with precision, the question presented is whether recreational common areas within a common interest development are public accommodations under the following circumstances, which are undisputed in the record before us: (1) the recreational area at issue is a fenced trail with various entry points spread over OPCA’s common area; (2) the entry points include architectural barriers to access by vehicles; (3) the trails are linked to a larger web of privately owned and publicly owned trails in Orange County; (4) the OPCA trails are accessible to the general public, in that OPCA follows a custom of not precluding members of the general public from utilizing the OPCA trails; and (5) OPCA does not charge fees to members of the general public for utilizing its trails or otherwise attempt to commercially exploit the trails.
We first dispense with what might be termed a “standing” argument made by OPCA throughout its brief. Carolyn does not own property within the common interest development. As the trails are on private land owned by the members of OPCA and operated by OPCA, it is clear OPCA could bar the general public, including Carolyn, from accessing the trails if it wished to do so. (See Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600, 1611-1612 [association may limit usage of tennis facilities to residents of condominiums]; Civ. Code, § 1009 [no “public recreational use” of private real property “shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently”].) The record, however, discloses no indication OPCA has ever attempted in the past or intends in the future to restrict access to its trails. If the OPCA trails are a public accommodation by reason of the public’s use of the trails, OPCA may not discriminate against disabled individuals in its management of the trails, regardless of whether they are residents within the confines of the common interest development.
[3] Moving to the substantive issue before us, purely residential areas of a common interest development are not public accommodations. (See Coronado v. Cobblestone Village Community Rentals, L.P. (2008) 163 Cal.App.4th 831 [holding residential apartment complex, including path from apartment to parking area, was not public accommodation and noting “ADA does not apply to residential facilities such as . . . condominiums”], disapproved on other grounds in Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 678; Indep. Housing Services v. Fillmore Ctr. (N.D.Cal. 1993) 840 F.Supp. 1328, 1344 [“The residential portions of Fillmore Center (the only portions at issue in this suit) do not themselves fall within the bounds of the ADA, since apartments and condominiums do not constitute public accommodations within the meaning of the Act”].) [1100]
Conversely, commercial real estate open to the public qualifies as a public accommodation even though it is a part of a residence or residential development. (See Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc. (D.Md. 1999) 40 F.Supp.2d 700, 705-706 [denying summary judgment in part because model unit at real estate development could be public accommodation if found to be sales office]; 28 C.F.R. § 36.207(a) [“When a place of public accommodation is located in a private residence, the portion of the residence used exclusively as a residence is not covered by this part, but that portion used exclusively in the operation of the place of public accommodation or that portion used both for the place of public accommodation and for residential purposes is covered by this part”].)
The instant case deals solely with recreational common area space within a common interest development, not residential space. Two recent California cases provide some guidance in resolving whether the OPCA trails are “public accommodations.” (Birke v. Oakwood Worldwide(2009) 169 Cal.App.4th 1540 (Birke); Coronado v. Cobblestone Village Community Rentals, L.P., supra, 163 Cal.App.4th 831.)
In Birke, the trial court sustained defendant Oakwood’s demurrer to a complaint which alleged, inter alia, that Oakwood violated title III of the ADA by failing to limit secondhand smoke in the outdoor common areas at the residential complex where plaintiff Birke lived. (Birke, supra, 169 Cal.App.4th at pp. 1543-1546.) The common areas at issue included swimming pools and a playground. (Id. at p. 1553.) The Birke appellate court affirmed the trial court’s order sustaining the demurrer without leave to amend as to Birke’s ADA claim, finding persuasive the “contention that the ADA does not apply to apartments and condominiums” and also citing the dearth of specific facts alleged in the operative complaint. (169 Cal.App.4th at p. 1553.)
Presiding Justice Perluss wrote a separate opinion in Birke, dissenting with regard to the majority holding Birke did not adequately plead a cause of action under the ADA. (Birke, supra, 169 Cal.App.4th at p. 1553-1556 (conc. & dis. opn. of Perluss, J.).) In addition to questioning whether Oakwood’s housing complex might constitute “transient lodging” (like boarding houses, dormitories, resorts, hotels, motels, and inns) and therefore qualify as a public accommodation in its entirety, Justice Perluss also asserted “the fact a facility such as an apartment complex itself may not fall within the ADA’s statutory definition of ‘public accommodation’ does not mean the site may not contain one or more of the enumerated public accommodations within its confines.” (Id. at p. 1554.) Justice Perluss suggested the common areas at issue “are places of recreation within the meaning of title 42 United States Code section 12187(7)(L) (‘a gymnasium, health spa, bowling alley, golf course, or other place of exercise or [1101] recreation’) even if the apartment complex itself is a residential property and not a public accommodation.” (Id. at p. 1555.)
In Coronado, supra, 163 Cal.App.4th at page 835, plaintiff Coronado sued Cobblestone Village, the apartment complex where Coronado resided. Coronado claimed the existence of a raised curb rather than an access ramp on the path outside his apartment leading to the parking lot was a violation of the Unruh Civil Rights Act and the Disabled Persons Act. (Coronado, at p. 835.) “The apartments and common areas around the [Cobblestone Village] apartments are reserved for use by tenants and guests of tenants only, although other persons might enter the complex since defendants’ employees do not patrol the grounds. Vehicles are able to enter the apartment complex by means of a private driveway that connects with [a public street] and winds through the interior of the complex.” (Id. at p. 836.) The Coronado trial court, on its own motion during trial, dismissed the Unruh Civil Rights Act and Disabled Persons Act claims, explaining that the residential areas of the apartment complex (not including the leasing office) were not public accommodations. (Coronado, at p. 838.)
The Coronado appellate court affirmed after finding the sidewalk/parking lot common area outside Coronado’s apartment was not a public accommodation under the ADA and was not an area used by the general public subject to the structural access standards of Health and Safety Code section 19955 et seq. and Government Code section 4450 et seq. (Coronado, at pp. 845-851.) Of note to the dispute here, the Coronado court explained: “[T]he ADA should be reasonably construed and applied in accordance with this intent. This means that, where there is a multiuse facility in which there is a commercial office open to the general public but also residential and common areas that are not open to the general public, it is appropriate to consider the particular area in question when attempting to determine the applicability of ADA structural access standards or other ADA requirements.” (Id. at p. 851.)
In sorting through whether OPCA’s trails are “public accommodations,” we also find Jankey, supra, 14 F.Supp.2d 1174, to be instructive. In Jankey, the court granted summary judgment to the defendant film studio with regard to plaintiff Jankey’s disability discrimination claim under title III of the ADA; the court dismissed Jankey’s state law claims. (Jankey, at p. 1176.) Jankey, an occasional guest at the studio, alleged the studio’s commissary, studio store, and on-site ATM machine were public accommodations. (Id. at p. 1177.) Defendant argued these facilities (which would obviously be public accommodations in other contexts) were not public accommodations because they were located on the studio lot, which was open only to employees of defendant or its affiliates and their authorized business guests. (Id. at p. 1180.) [1102]
[4] In its analysis, the Jankey court recognized “‘[m]any facilities that are classified as public accommodations are open only to specific invitees.'” (Jankey, supra, 14 F.Supp.2d at p. 1178.) The court then identified several factors to aid its task of identifying whether the studio’s facilities were a “public accommodation.” “Among the factors the court considers in determining whether a facility is genuinely ‘private,’ and therefore exempt, are the following: the use of the facilities by nonmembers (or nonemployees, in the commercial context); the purpose of the facility’s existence; advertisement to the public; and profit or non-profit status. [Citation.] Under the first factor, use by nonmembers (or nonemployees), the court may consider ‘the extent to which [the facility] limits its facilities and services to [employees] and their guests.’ [Citation.] ‘Regular use’ or ‘indiscriminate use’ by nonmembers (or nonemployees) contradicts private status.” (Id. at p. 1179.) Although these factors were identified and applied in a different context, we think the factors also have utility in the context of determining whether common areas in a common interest development are “public accommodations.”
The Department of Justice addressed the general issue before us in a 1992 letter drafted in response to a citizen’s request for information about the ADA’s applicability to a “clubhouse” at his “housing development”: “The ADA does not apply to strictly residential facilities. Assuming your housing complex is strictly residential and would not be considered a social service center establishment, whether the ADA applies to the clubhouse depends on who is entitled to use the clubhouse. If activities in a clubhouse within a residential complex are intended for the exclusive use of residents and their guests, the facility is considered an amenity of the housing development. It would not be considered a public accommodation subject to the accessibility requirements of the ADA. . . . [¶] If the clubhouse facilities and activities are made available to the general public for rental or use, they would be covered by the ADA. Once covered by the ADA, the owners or operators of the clubhouse would be required to remove architectural barriers to accessibility if their removal is readily achievable, that is, without much difficulty or expense.” (Dept. of Justice, Office on the Americans with Disabilities Act, 202-PL-118, Sept. 11, 1992, italics added.)
[5] The Attorney General of California answered a similar question in much the same fashion in 1982: “We are asked whether a recreation building in a mobilehome park is a ‘public accommodation or facility’ within the meaning of [Health and Safety Code section 19955]. We conclude that a recreation building in a mobilehome park is not a ‘public accommodation or facility’ within the meaning of section 19955 so as to be required to be accessible and usable by handicapped persons.” (65 Ops.Cal.Atty.Gen. 72 (1982).) “To be brought within the ambit of section 19955 a facility must be public. . . . [T]he recreation building just does not have the characteristics and incidents of being public that section 19955 not only [1103] contemplates but specifically requires.” (Id. at p. 74.) “Undoubtedly [a recreation building] is open to a more general class than the residents of the park, for surely it is available to their families and invited guests. Use by that expanded group of persons in our view, however, does not reach the use ‘by the general public’ spoken of in section 19955. There are still meaningful restrictions on who may use the facilities, which considerably narrows their [availability] to the general public –[unlike] an auditorium, hospital, theater, restaurant, hotel, motel, stadium, or convention center . . . . Furthermore, unlike those facilities, the purpose for whose creation is based upon their being made continuously available to the general public and whose economic viability cannot survive without their being so available, the recreation center at a mobilehome park is neither so created nor dependent. Rather, it is a secondary appendage to another unit, the park itself which, like it, neither contemplates nor needs accessibility of continuous use by the general public for its sustenance.” (Id. at p. 75.) This opinion letter also indicated the result would be different if the recreation building was used “‘by the general public.'” (Ibid.) The letter did not identify the precise dividing line, however, between use by the “‘general public'” and the uses specified in the letter (use by residents, family, friends, and other invitees).
Several commentators come to much the same conclusion. “The [ADA] applies to ‘public accommodations.’ This may include facilities that are part of a common interest development, such as a sales or rental office receiving public traffic, or commercial facilities that are part of a residential project. A meeting room leased to the public for a fee is subject to the act, but not a room used only by the association members.” (Hanna & Atta, California Common Interest Developments: Law and Practice (2008) § 22.45.) “[I]f a community association or condominium owns, operates, or leases a swimming pool, tennis court, or other recreational facility that is open to members of the general public, then, with respect to the operation of the recreational facility, the community association or condominium would be a place of public accommodation governed by Title III of the ADA.” (Matthew Bender, ADA: Public Accommodations and Commercial Facilities, § 2.04.) “A recreational facility that is open to members of the public (rather than being reserved exclusively for the use of association members and their families and guests) is probably a place of public accommodation. [¶] Other places of public accommodation that are sometimes owned, operated, or leased by associations include: [¶] Day care center; [¶] Senior citizen centers; [¶] Refreshment stands; and [¶] Meeting rooms that are occasionally rented to business or civic groups.” (Ransom, How the Americans with Disabilities Act Affects Residential Community Associations (1993) 9 Practical Real Estate Lawyer 55, 57.) [1104]
The OPCA Trails
[6] After duly considering all of the aforesaid authorities, we conclude OPCA’s trails are not public accommodations under either the ADA or California law. We agree with the premise that recreational common areas within common interest developments can be classified as public accommodations in appropriate circumstances. But we think it clear OPCA’s trails would not be a public accommodation if OPCA actively excluded the general public from using the trails. Moreover, we do not think OPCA’s private trails transform into public accommodations merely because OPCA does not actively exclude members of the public from using the trails. (See Coronado, supra, Cal.App.4th at pp. 836, 845-851.)
OPCA’s trails are not like the zoos, golf courses, health spas, bowling alleys, or amusement parks specifically identified as public accommodations in the ADA. (28 U.S.C. § 12181(7).) Nor are the trails like the auditoriums, hospitals, theatres, restaurants, hotels, motels, stadiums, and convention centers specifically mentioned in Health and Safety Code section 19955, subdivision (a).
Each of the examples listed in the ADA fn. 5 and the Health and Safety Code illustrate the broader concept that places of public accommodation are places designed and intended to provide services, goods, privileges, and advantages to members of the public, usually in exchange for payment (and when not requiring payment, often motivated by some other advantage to the entity providing the accommodation, such as promoting its good will to the community). The specific statutory examples are illustrative of the types of places that constitute public accommodations, not a replacement for the requirement that the alleged public accommodation is actually an accommodation to and for the public. Indeed, even a specifically listed recreational site [1105] (e.g., a bowling alley) would not be a public accommodation if it were built by a private individual on private land solely for the personal enjoyment of the individual and not opened to the public.
There is no evidence in the record suggesting OPCA’s trails were built for anyone other than its own members. There is no evidence in the record suggesting OPCA encourages public use of its trails, through advertising or otherwise. Nor is there evidence in the record suggesting OPCA charges fees to members of the public for using the trails or benefits in other ways from the public’s use of the trails. The OPCA trails are an “amenity” provided to OPCA’s members in exchange for their membership and association dues, not a public accommodation. OPCA “neither contemplates nor needs accessibility or continuous use [of the trails] by the general public for its sustenance.” (65 Ops.Cal.Atty.Gen. 72, supra, at p. 75.)
[7] In coming to this conclusion, we are mindful of “the hardships suffered by individuals who have disabilities . . . .” (Coronado, supra, 163 Cal.App.4th at p. 851.) We do not think the result in this case, though, will have negative wide ranging consequences to disabled individuals seeking equal access to recreational opportunities. Our holding is consistent with applying the structural access standards mandated by state and federal disability law to homeowners’ associations if such associations create public accommodations within the common areas of the common interest development. For instance, a pool, park, or trail open to the public for a fee would be a public accommodation, regardless of the recreational facility’s location in a common interest development. We disagree with the reasoning of the majority opinion in Birke, supra, 169 Cal.App.4th at page 1553, to the extent it suggests there is a bright line rule protecting residential complexes from all liability for structural access deficiencies under the ADA. We hold only that a private property owner (here, a homeowners’ association) does not convert private recreational property into a public accommodation by failing to actively deny the public access to the recreational property.
We also note homeowners’ associations do not necessarily escape application of laws protecting disabled individuals even if its common areas are not deemed to constitute a public accommodation. Residential areas, including homeowners’ associations, can be (in appropriate circumstances) subject to federal and state fair housing law restrictions, which are not dependent upon a “public accommodation” finding. (See 42 U.S.C. § 3601 et seq.; Gov. Code, § 12900 et seq. (FEHA); Civ. Code, § 1352.5 [prohibiting restrictive covenants in common interest development declarations that violate Gov. Code, § 12955]; Cal. Code Regs., tit. 24, § 1101A.1 et seq. [housing accessibility standards applicable to multifamily dwelling units and the common areas associated therewith]; Auburn Woods I [1106] Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1584, 1598-1599 [under FEHA, Fair Employment and Housing Commission entitled to conclude permitting severely depressed individuals to own dog was reasonable accommodation required of association, which banned dogs in its CC&R’s]; Southern California Housing Rights Center v. Los Feliz Towers Homeowners Assn. Bd. (C.D.Cal. 2005) 426 F.Supp.2d 1061, 1066-1068 [disabled condominium resident requested special parking accommodation; court granted summary judgment to association on ADA claim because association is not “public accommodation,” but found material issue of fact with regard to state and federal fair housing claims].) But Carolyn is not a member of OPCA, a resident of the grounds controlled by OPCA, or someone who has unsuccessfully attempted to procure residency within OPCA. Carolyn thus did not (and could not) bring a claim under state or federal fair housing law.
Finally, we note that classifying OPCA’s trails as a public accommodation subject to the access standards of the ADA and California law could have perverse consequences for the disabled and able-bodied alike. Members of the public, including disabled individuals, currently enjoy the use of OPCA’s trails without charge. fn. 6 Non-members of OPCA who use the trails are free riders — those on horseback quite literally so. Although there is no evidence in the record to support this observation, there are undoubtedly other owners of private property in California who tolerate trespasses upon their private recreational property. (See Civ. Code, § 1009, subd. (a)(1) [“It is in the best interests of the state to encourage owners of private real property to continue to make their lands available for public recreational use”].) It would be unfortunate if property owners (including but not limited to homeowners’ associations) presently inclined toward nonenforcement of their right to exclude the public from recreational areas changed their outlook because of fears of civil litigation conducted by individuals without an ownership stake in the recreational area at issue. Indeed, the most likely explanation for OPCA’s neglect of its members’ property rights is the cost and hassle associated with excluding nonmembers and including members. It is possible a decision contrary to that reached here could lead a previously apathetic association (or individual landowner) to invest in fences, security, access technology, and other means of excluding the public from privately owned recreational areas. [1107]
DISPOSITION
For the foregoing reasons, we affirm the judgment. OPCA shall recover its costs on appeal.
O’Leary, Acting P. J., and Moore, J., concurred.
FN 1. OPCA is a “[c]ommon interest development” (Civ. Code, § 1351, subd. (c)) under the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.).
FN 2. While the larger trail system to which OPCA’s trails connect is owned in part by Orange County and in part by other associations and municipalities, the OPCA trails over which OPCA exercises control are owned by OPCA.
FN 3. Carolyn raised a triable issue of fact with regard to the extent of OPCA’s investigation of safety issues and damage to the trail fences, as well as “whether or not dangerous conditions existed, and if so, what means” were reasonable to remedy such conditions. But it is undisputed that OPCA implemented the written recommendations of its Arena and Trails Committee by installing posts in the ground on the trails.
FN 4. “[S]tate courts have concurrent jurisdiction of ADA claims.” (Black v. Department of Mental Health (2000) 83 Cal.App.4th 739, 744, fn. 4.)
FN 5. The complete list of “entities” comprising “public accommodations” under the ADA is as follows: “(A) an inn, hotel, motel, or other place of lodging, . . .; [¶] (B) a restaurant, bar, or other establishment serving food or drink; [¶] (C) a motion picture house, theatre, concert hall, stadium, or other place of exhibition or entertainment; [¶] (D) an auditorium, convention center, lecture hall, or other place of public gathering; [¶] (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; [¶] (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; [¶] (G) a terminal, depot, or other station used for specified public transportation; [¶] (H) a museum, library, gallery, or other place of public display or collection; [¶] . . . [¶] (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; [¶] (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and [¶] (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.” (42 U.S.C. § 2181(7).)
FN 6. It is unclear precisely how much benefit the OPCA trails offer to the public, in light of the nearby availability of trails owned by public entities and the limited number of individuals with the inclination and financial ability to ride horses as a means of recreation. Nevertheless, the record suggests there is some benefit to the general public in being able to access OPCA’s trails.
